People v. Cawkwell
246 Cal. Rptr. 3d 744
| Cal. Ct. App. 5th | 2019Background
- Between Nov 2015 and Apr 2016, while on parole for prior sex convictions, Rennard Cawkwell (46) pretended online to be a 16-year-old and exchanged sexually explicit messages with a 16-year-old, Kayla.
- Cawkwell later appeared unannounced at Kayla’s home twice and had cellphones; police found images of underage girls on a used phone.
- He was convicted of communicating with a minor with intent to commit a specified sex offense (Pen. Code § 288.3) and annoying/molesting a child (Pen. Code § 647.6); a child-pornography count was dismissed after a mistrial.
- The trial court sentenced him to four years, ordered sex-offender registration under § 290, and denied a Romero motion to strike priors; Cawkwell presented evidence of autism/intellectual impairment at trial.
- After sentencing, California enacted mental-health pretrial diversion (Pen. Code § 1001.36) in June 2018, then amended it (effective Jan 1, 2019) to exclude offenses requiring registration under § 290.
- Cawkwell appealed solely arguing he should be remanded for potential mental-health diversion: he contends the original § 1001.36 applies retroactively but the later amendment cannot be applied retroactively because of the ex post facto clauses.
Issues
| Issue | Plaintiff's Argument (Cawkwell) | Defendant's Argument (People) | Held |
|---|---|---|---|
| Whether the original mental-health diversion statute (§ 1001.36 as enacted June 2018) must be applied retroactively | § 1001.36 is ameliorative and should apply retroactively to Cawkwell | The court did not need to reach or accept retroactivity to resolve the appeal | The court assumed without deciding retroactivity but denied relief because of the amendment’s applicability |
| Whether the September 2018 amendment that bars diversion for offenses requiring § 290 registration violates the ex post facto clauses if applied to Cawkwell | The amendment cannot be applied retroactively because it increases punishment or removes a benefit after the offense | The amendment is not an ex post facto law because when offense occurred no diversion benefit existed and the amendment did not increase punishment | Held: Amendment is not ex post facto; Cawkwell is ineligible for diversion and judgment is affirmed |
Key Cases Cited
- People v. White, 2 Cal.5th 349 (clarifying ex post facto test: statute punishes previously innocent act or increases punishment)
- People v. Frahs, 27 Cal.App.5th 784 (concluding diversion statutes are ameliorative and retroactivity issues)
- People v. Perez, 68 Cal.App.4th 346 (diversion amendment applied ex post facto where defendant could have relied on preexisting program)
- People v. Superior Court (Romero), 13 Cal.4th 497 (procedures for striking prior convictions)
- Weaver v. Graham, 450 U.S. 24 (ex post facto principles and fair warning)