Criminal Defense of Immigrants


§ 10.60 4. Other Conduct-Based Enhancements

Skip to § 10.

For more text, click "Next Page>"

As the law develops, other conduct-based sentence enhancements may be identified that require special attention



Sixth Circuit

In People v. Puentes, 2007 WL 927927 (6th Dist. Calif. Court of Appeals March 29, 2007), the court, in dictum, stated:

"For the guidance of the court and parties in the event the issue arises again, we observe that registered sex offender status, with the accompanying worldwide publication of that status over the internet, imposes a grave stigma and social disability upon the offender. Such publication has been held not to raise registration to the status of punishment for purposes of the ex post facto clause because the fact of the defendants conviction of a sex offense is already a matter of public record. (Smith v. Doe (2003) 538 U.S. 84, 98 ["the stigma of Alaskas Megans Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public"]; id. at p. 99 [citizens visit to web site to search for offenders is "analogous to a visit to an official archive of criminal records"]; In re Alva (2004) 33 Cal.4th 254, 276-277, quoting Smith v. Doe, supra, at p. 101 ["Whatever lasting and painful impact the public availability of registration information may have on an offenders practical ability to obtain employment and housing, these consequences flow not from the Acts registration and dissemination provisions, but from the fact of conviction, already a matter of public record "].) This rationale loses its force when the defendant has been convicted not of a sex offense, but of some other offense found only by a court, not a jury, to be sexually motivated. Here, an examination of the public record would tell defendants fellow citizens that two juries refused to convict him of a sex offense. So far as the verdict reflects, he may have done nothing more culpable or more indicative of a risk of future sex offenses than to fail to arrange for her apprehension by juvenile authorities. Publicly declaring him a sex offender therefore imposes a stigma and disability far beyond anything that would flow from the publics examination of the record in his case. It may therefore be forcefully argued that registration in such a case is an "increase[]" in the "penalty" such that the facts on which it rests must be found by a jury. (See Apprendi v. New Jersey, supra, 530 U.S. at p. 490; Blakely v. Washington, supra, 542 U.S. at p. 301.)"