34 Cal.App.5th 1048
Cal. Ct. App.2019Background
- In 2015–2016, while on parole for prior sex convictions, Rennard Cawkwell (46) posed online as a 16‑year‑old and exchanged sexually explicit messages with a 16‑year‑old girl; he later appeared uninvited at her home and at her younger sister's home.
- Police found two cellphones at his residence, including images of underage girls; charges were filed for communicating with a minor to commit a sex offense (Pen. Code § 288.3) and annoying/molesting a child (§ 647.6); a child‑pornography count was declared a mistrial and dismissed.
- Cawkwell testified he is autistic with intellectual impairment; defense presented expert testimony diagnosing autism spectrum disorder and intellectual impairment; he sought Romero relief to strike priors, which the trial court denied.
- The trial court sentenced Cawkwell to four years and ordered sex‑offender registration (§ 290).
- After sentencing, the Legislature enacted a mental‑health pretrial diversion statute (§ 1001.36, June 27, 2018) but amended it Sept. 30, 2018 to exclude defendants who would be required to register under § 290 (effective Jan. 1, 2019).
- On appeal Cawkwell argued the original diversion statute should be applied retroactively and the later amendment cannot be applied retroactively under the ex post facto clauses; he sought remand for consideration of diversion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the amendment narrowing § 1001.36 eligibility violates the ex post facto clauses | The People: amendment is not ex post facto because it did not increase punishment or criminalize past conduct | Cawkwell: amendment cannot be applied to him because it retroactively removes diversion available under the earlier statute | Court held amendment is not an ex post facto law and therefore Cawkwell is ineligible for diversion |
| Whether Cawkwell could have relied on diversion when he committed offenses | The People: diversion did not exist at the time of the offenses, so no reliance | Cawkwell: the original statute is ameliorative and should be applied retroactively; amendment cannot strip that benefit | Court noted diversion was enacted after offenses, so he could not have relied on it; thus amendment does not offend ex post facto protections |
Key Cases Cited
- People v. White, 2 Cal.5th 349 (principle that ex post facto forbids laws that increase punishment or criminalize formerly innocent acts)
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981) (ex post facto aim: fair warning and reliance on existing law)
- People v. Perez, 68 Cal.App.4th 346 (1998) (diversion amendment applied ex post facto where diversion existed at time of offense and amendment increased punishment by changing conditions)
- People v. Superior Court (Romero), 13 Cal.4th 497 (1996) (authority on striking priors)
- People v. Frahs, 27 Cal.App.5th 784 (2018) (case addressing retroactivity of diversion statutes)