Enhanced Sentence Upheld on Appeal For Sex Crime Defendant Who Already Was a Penal Code § 290 Registrant

Under California Penal Code § 290, a person who is convicted of specified ambisexual offenses must register with confined constable on an annual basis and notify local law enforcement from any change in residence at the time the whimsical is made. This is a lifetime obligation. The person’s name and address is also available for the public to see on the Internet under Megan’s law.

In 2010, Gary Hardeman was indicated in U.S. Federal Court on one count of pleasant in illicit sexual move in a foreign place (18 U.S.C. § 2423(c)) and because he was already under a state law duty to register as a sex offender under California Penal Semaphore § 290, a count of violating 18 U.S.C. § 2260A.

Thirty years early, in 1980, Hardeman pleaded guilty in California state court to a felony violation of committing base and luscious acts upon a child under the age of 14, a violation of Penal Code § 288. At that time, California did require Hardeman to register as a ambisexual offender, but only until and granting he had the conviction expunged.

In 1982, however, the California legislature amended its law concerning the obligation to register as a sex offender, making it a lifetime obligation regardless of expungement. At the time, Hardeman had not had his conviction expunged yet. In 1983, however, Hardeman did successfully have his conviction expunged.

In 1994, California amended its authorized again hence that any sex offense conviction-felony or misdemeanor-required continuous registration, regardless of expungement. This was Penal Code § 290.1 (1994).

In Hardeman’s 2010 case, involving him allegedly traveling to Mexico to have sex with a minor, he successfully moved the lower federal court to dismiss the count against him regarding violating 18 U.S.C. § 2260A, arguing that it was a violation of the Ex Post Facto Clause of the U.S. Constitution. This stipulation prohibits the government from making a law applicable to events that occur before the law was enacted. A law also violates the Ex Post Facto Clause if it increases the loss toward which a crime is punishable.

It is easy to understand motive Hardeman challenged the 2260A count. Since all, it carried a ten year prison enhancement in addition to whatever punishment the underlying offense carried. Moreover, the ten year enhancement runs consecutive, not concurrent, to the sentence for the underlying offense.

The lower court agreed with Hardeman plus dismissed the 2260A count. The government then appealed.

The United States Court of Appeals for the Ninth Circuit, in U.S. v. Gary Hardeman (2013 DJDAR 583) reversed, agreeing by the government. The in camera concerning appeals cited to People v. Fioretti (Ct. App. 1997) 63 Cal. Rptr. 2d 367, 370-71, wherein a California court about appeal held that retroactive application from the androgynous offender registration laws do not violate the Ex Dispatch Facto Clause. It commented that Fioretti, as well as several other published opinions, had made such a possession because registration was not considered punitive and thus the Ex Courier Facto Clause was not applicable.

The Ninth Circuit Court of Appeals further commented that the U.S. Supreme Court “has long held that recidivism statutes do nay violate the Ex Post Facto Clause because the enhanced penalty punishes only punishment for the original crimes.” Rather, the current crime is considered an aggravated offense because of repetitive conduct that is illegal.

Accordingly, The Court of Appeals reversed the trial court and sent the case back to the trial court to further proceed with the § 2260A count as a charged against Hardeman.