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Name: In re Efstathiou
Case #: C067807
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/04/2011

Amended section 2933.6, subdivision (a), limiting the earning of conduct credits for validated gang members in segregated housing, does not violate ex post facto considerations as it is not applied retrospectively. In 1999, 2006, and again in 2009, following a new prison commitment, prison authorities validated petitioner as a member in a prison gang. On November 25, 2009, he was placed in an administrative segregation unit because of his validated gang membership. Effective January 25, 2010, Penal Code section 2933.6, subdivision (a) was amended so as to make a validated gang member in an administrative segregation unit ineligible to earn conduct credits. Prior to this date, it was possible for such an inmate to earn conduct credits totaling one-third of his sentence. Petitioner filed the instant writ challenging the denial of conduct credits as an ex post facto violation. For a criminal law to be ex post facto, it must (1) be retrospective, i.e., apply to events occurring before its enactment, and (2) alter the definition of criminal conduct or increase the punishment for a crime. Here, the evidence showed that petitioner chose to continue to be an active member of the prison gang while incarcerated, a choice that has continued after the effective date of amended section 2933.6, subdivision (a). Since he has chosen to engage in this conduct on and after the date of the amendment, the amendment can be applied to deny him credits without violating ex post facto considerations because it is not being applied retrospectively.