California v. CawkwellAnnotate this Case
A jury found Rennard Cawkwell guilty of communicating with a minor with the intent to commit a specified sex offense, and annoying or molesting a child. The trial court sentenced him to four years in prison and ordered that he register as a sex offender under Penal Code 290. After Cawkwell was sentenced, the California Legislature established a diversion program for defendants diagnosed with qualifying mental health disorders. A few months later, the Legislature amended the diversion scheme to eliminate eligibility for defendants charged with (as relevant here) offenses that require registration under section 290. Cawkwell's only contention on appeal was that the Court of Appeal remand his case back to the trial court for consideration of a mental health diversion for him under section 1001.36. To this end, he asked the Court of Appeal to conclude: (1) Penal Code section 1001.36 as originally enacted, applies retroactively; and (2) the subsequent amendment eliminating eligibility for certain defendants (like Cawkwell) could not apply retroactively due to the ex post facto clauses of the state and federal Constitutions. The Court concluded that because all relevant legislative activity occurred years after Cawkwell committed his offenses, he could not have relied on the prospect of receiving diversion when he committed his offenses. Thus, the amendment eliminating eligibility for sex offenders like Cawkwell was not an ex post facto law. Accordingly, assuming (without deciding) the mental health diversion statute would otherwise apply retroactively to Cawkwell, he would nevertheless be ineligible for diversion. Therefore, the Court affirmed Cawkwell's conviction.