Filed 3/2/15
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S187965
v. )
) Ct.App. 4/3 G038379
STEVEN LLOYD MOSLEY, )
) Orange County
Defendant and Appellant. ) Super. Ct. No. 05NF4105
____________________________________)
We confront a single, narrow issue. Apprendi v. New Jersey (2000)
530 U.S. 466 (Apprendi) held that the Sixth Amendment generally requires a jury
to find ―any fact that increases the penalty for a crime beyond the prescribed
statutory maximum.‖ (Id., at p. 490, italics added.) If a judge makes the findings
underlying his or her discretionary order that a convicted criminal defendant must
register as a sex offender, is the order invalid under Apprendi insofar as it includes
registered sex offender residency restrictions imposed by Proposition 83, the
Sexual Predator Punishment and Control Act: Jessica‘s Law (Prop. 83, as
approved by voters, Gen. Elec. (Nov. 7, 2006), hereafter Proposition 83 or
Jessica‘s Law)? We conclude the answer is no.
California law has long required persons convicted of certain specified sex
crimes, including commission of a lewd act on a child under 14 (Pen. Code, § 288,
1
subd. (a) (section 288(a))1 to register as sex offenders as long as they live or work
in California. (§ 290, subds. (b), (c).) If the conviction is for an offense other than
those automatically requiring registration, the court may nonetheless exercise its
discretion to impose a registration requirement if the court finds the offense was
sexually motivated or compelled, and that registration is justified by the
defendant‘s risk of reoffense. (§ 290.006; see People v. Garcia (2008)
161 Cal.App.4th 475, 485; cf., People v. Hofsheier (2006) 37 Cal.4th 1185, 1196-
1197 (Hofsheier), overruled on other grounds, Johnson v. Cal. Dept. of Justice
(Jan. 29, 2015, S20916) ___ Cal.4th ___.)
On November 7, 2006, the voters enacted Proposition 83. Among other
things, the initiative measure sought to create ―predator free zones around schools
and parks to prevent sex offenders from living near where our children learn and
play.‖ (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) (Ballot Pamphlet) argument in
favor of Prop. 83, p. 46, italics and capitalization omitted.) To this end,
Proposition 83 added new subdivision (b) to an existing statute, Penal Code
section 3003.5.
Prior to Proposition 83, section 3003.5, codified among laws dealing with
parole, had limited the rights of parolee sex offender registrants, while on parole,
to live with other registered sex offenders. (Id., subd. (a).) As added by the
initiative measure, subdivision (b) of section 3003.5 (hereafter section 3003.5(b))
declares: ―Notwithstanding any other provision of law, it is unlawful for any
person for whom registration [as a sex offender] is required . . . to reside within
2000 feet of any public or private school, or park where children regularly gather.‖
(Italics added.)
1 All subsequent unlabeled statutory references are to the Penal Code.
2
Here, defendant‘s 2003 conduct with a 12-year-old girl led to a charge he
committed a lewd act on a child under 14. In a 2007 trial, the jury acquitted him
of that crime, but convicted him of the lesser misdemeanor offense of simple
assault. At sentencing, the court exercised its discretion to order him to register as
a sex offender. To support this action, the court found, as specified in section
290.006, that the assault was committed ―as a result of sexual compulsion or for
purposes of sexual gratification.‖ The court further determined that defendant was
physically dangerous to the public, at serious risk to reoffend, and not being
treated for his sexual compulsion.
The Court of Appeal accepted defendant‘s argument that the registration
order is invalid under Apprendi because the trial judge, and not a jury, made the
predicate factual findings. The appellate court was persuaded by well-settled
authority that a requirement to register as a sex offender is not, in and of itself, a
criminal penalty, or punishment, for the conviction that led to imposition of the
requirement. But the court concluded that the residency restrictions of Jessica‘s
Law are punitive, that the initiative measure made these restrictions an integral
part of every registration order, including defendant‘s, and that the lack of jury
findings to support the instant order thus violated Apprendi.
On review, the People urge at the outset that even if the residency
restrictions of Jessica‘s Law are punitive, they do not invalidate defendant‘s
registration order because they simply do not apply to this order. The People posit
that as a matter of statutory intent, section 3003.5(b)‘s residency restrictions apply
only to parolees while they are on parole, and have no effect on a nonparolee
misdemeanant such as defendant.
We need not, and do not, decide this threshold issue of statutory
construction in order to resolve the narrow Apprendi issue before us. Even if we
assume, as defendant insists, that section 3003.5(b) does apply to him, we are
3
persuaded, for three separate and independently dispositive reasons, that Apprendi
does not invalidate his registration order.
First, as the People also argue, the effect of Apprendi on the residency
restrictions of Jessica‘s Law is obviated by a post-Apprendi decision, Oregon v.
Ice (2009) 555 U.S. 160 (Ice). In Ice, the high court concluded that the Sixth
Amendment‘s protections must be viewed in light of the jury trial right as it
existed at the time the Constitution was adopted, and cannot intrude unduly on the
sovereign states‘ historical dominion over the subsequent development of their
penal systems. Hence, the Ice court determined, Apprendi has no application to
sentencing decisions in which juries played no factfinding role at common law.
Sentencing choices such as sex offender residency restrictions are devices,
developed by the sovereign states in more modern times, that were not historically
entrusted to juries. A requirement that juries must always authorize them would
often interfere with their intended and effective implementation. Thus, we need
not inquire further into whether they are or are not punitive in order to conclude
they are not limited by Apprendi.
Second, we disagree in any event that the residency restrictions constitute a
penalty for purposes of Apprendi. Under tests traditionally employed to determine
what constitutes punishment for constitutional purposes, the residency restrictions,
like sex offender registration itself, cannot facially be considered anything other
than a legitimate, nonpunitive regulatory device. Their manifest intent is not to
exact retribution, or to deter by threat of sanction, but to promote public safety by
physically insulating vulnerable children from potentially recidivist registered sex
offenders who might prey upon them. The restrictions may impose significant life
4
difficulties in particular situations or communities,2 but they do not so resemble
historical forms of punishment, and are not, on their face, so onerous, disabling,
irrational, or overbroad as to require a conclusion that their punitive effect
overrides their regulatory purpose.
Third, even if the residency restrictions of Jessica‘s Law did require jury
findings under Apprendi, this would not mean a registration order unsupported by
such findings must be struck. No reason appears why the nonpunitive registration
order itself should not survive in such a case, even if the attendant residency
restrictions were unenforceable.
For these multiple reasons, we conclude the Court of Appeal erred in
holding, under Apprendi, that defendant‘s sex offender registration order is
invalid. Accordingly, we will reverse the Court of Appeal‘s judgment insofar as it
struck the order from defendant‘s conviction.
FACTS AND PROCEDURAL BACKGROUND
In October 2005, the Orange County District Attorney charged defendant
by information with one count of committing a lewd act upon a child under the
age of 14. (§ 288, subd. (a).)
The case was tried in 2007. Lori C., the minor victim, testified that one day
in June 2003, while she was staying at her grandmother‘s apartment in Anaheim,
she met defendant Steve Mosley, who was 18 years old at the time. She told
defendant she was 12 years old. That evening Lori went to the apartment complex
laundry room. Defendant walked up behind her, and when she turned around, he
kissed her on the mouth.
2 See, for example, In re Taylor (Mar. 2, 2015, S206143) __ Cal.4th ___
(S206143) (Taylor), a companion case we also file today. We discuss Taylor at
greater length later in this opinion. (Fn. 15, post.)
5
Approximately three days later, Lori was in the apartment complex carport.
Defendant approached her and kissed her on the neck, telling her to relax and not
say anything. Lori tried to move away, but defendant held her wrists and pinned
her to the wall with the weight of his body so she could not move. Defendant tried
to stick his tongue into her mouth. He then put his hand up her shirt and down her
pants, grabbing her breasts and buttocks and rubbing her between her legs.
Pulling down his own shorts and pulling Lori‘s skirt to one side, defendant put his
penis in Lori‘s vagina ―for about two minutes.‖
Lori‘s older brother, who was approximately 14 years old at the time of the
incident, saw defendant standing in front of Lori with his shorts pulled down
around his knees and the bottom of the shorts touching the ground. Lori‘s younger
brother, who was approximately 11 years old at the time of the incident, also saw
defendant with his shorts pulled down to his knees and his arms around Lori, who
was pinned up against a wall. Her younger brother could see defendant‘s naked
buttocks, and heard his sister say ―no‖ to defendant at least three times. He went
and told his grandmother, who came outside and saw Lori struggling with
defendant. She called out Lori‘s name and yelled to defendant, ―What are you
doing? She‘s only twelve.‖ Defendant turned around, saw the grandmother, and
fled by jumping over a wall.
Scared, confused, and embarrassed, Lori did not tell anyone else about the
assault until several months later when she confided in her father and he reported
the incident to the police. An Orange County Sheriff‘s Department investigator
interviewed Lori in August 2003 and again in September 2005. During the
interviews, Lori related substantially the same account of events to which she
would later testify at trial. The Orange County Sheriff‘s Department did not
request a sexual assault examination due to the passage of time, but Lori‘s parents
6
took her for a medical examination to determine if she had contracted any sexually
transmitted diseases as a result of the assault.
The jury acquitted defendant of the charge of committing a lewd act on a
child under 14, but convicted him of the lesser included offense of simple assault,
a misdemeanor. (§ 240.) Defendant was sentenced to six months in the county
jail with 180 days credit for time served.
Although the jury found defendant not guilty of the charged sexual offense
and guilty only of assault, the trial court exercised its discretion to order defendant
to register as a sex offender pursuant to former section 290, subdivision (a)(2)(E).3
The court noted, ―We simply don‘t know what the jury—why the jury acquitted
the defendant. It‘s certainly not obvious that they disbelieved the witnesses.‖ As
required, the court stated on the record the reasons for its findings and the reasons
it was requiring registration. (§ 290.006.) It found the evidence established
beyond a reasonable doubt that ―the assault in this case was committed as a result
of sexual compulsion or for purposes of sexual gratification.‖4 It took note of
3 At the time of trial, the discretionary registration provision was contained in
former section 290, subdivision (a)(2)(E). The provision was thereafter moved to
section 290.006, and former section 290 was rewritten to delete subdivision
(a)(2)(E), effective October 13, 2007. (Stats. 2007, ch. 579, §§ 8 and 14.) For
sake of clarity, we shall refer to the section containing the discretionary
registration provision invoked by the trial court below as section 290.006.
Section 290.006 provides: ―Any person ordered by any court to register
pursuant to the Act for any offense not included specifically in subdivision (c) of
Section 290, shall so register, if the court finds at the time of conviction or
sentencing that the person committed the offense as a result of sexual compulsion
or for purposes of sexual gratification. The court shall state on the record the
reasons for its findings and the reasons for requiring registration.‖
4 The court indicated it was making this finding beyond a reasonable doubt
although fully aware that, under the discretionary registration statute, the required
finding need only be found true by a preponderance of the evidence. (§ 290.006.)
7
Lori‘s ―truthful and sincere‖ testimony that defendant ―grabbed her, kissed her,
fondled her breasts, buttocks and the area between her legs, dropped his pants and
inserted his penis into her vagina.‖ It noted Lori‘s grandmother testified she saw
Lori struggling with defendant, and her brothers each testified they saw Lori with
her back to the wall and defendant leaning against her with his pants down around
his ankles. The court found defendant was ―even more likely‖ driven by sexual
compulsion because he assaulted Lori in an open carport, and the assault was ―not
an isolated incident‖ because he had approached and kissed her once before. In
addition, the court found registration was appropriate because defendant was
physically dangerous to the public, at serious risk to reoffend, and not under
treatment for his sexual compulsion. The registration order was stayed pending
appeal.
On appeal, defendant conceded the validity of his misdemeanor assault
conviction but challenged the registration order as factually unwarranted, and thus
an abuse of the trial court‘s discretion. For the first time in his reply brief,
defendant raised the additional claim that the order was invalid under Apprendi
because it included the residency restrictions set forth in Jessica‘s Law.5
Defendant argued that, by barring him as a registered sex offender from residing
within 2,000 feet of schools or parks where children gather (§ 3003.5(b)), the
restrictions increased the penalty for his assault conviction beyond the statutory
maximum. Accordingly, he urged, because the trial court, and not the jury, had
5 We note that the residency restrictions set forth in Jessica‘s Law took effect
on November 8, 2006, the day after the November 7, 2006, General Election. (See
Cal. Const., art. II, § 10, subd. (a).) They were thus in effect on March 16, 2007,
when the trial court imposed the registration requirement on defendant in this case.
8
found the facts required to support the discretionary registration order, the order
violated his Apprendi jury trial guarantee and must be stricken.
In its first opinion (Mosley I), the Court of Appeal rejected defendant‘s
abuse of discretion claim, but agreed with his Apprendi argument. The appellate
court reasoned that defendant, who was subject to the registration requirement,
was also subject to the residency restrictions under section 3003.5(b)‘s plain and
express terms. Thus, the court ruled, Apprendi required the facts necessary to
support the order to be found by a jury beyond a reasonable doubt, because the
residency restrictions, analyzed under the multi-factor ―intent/effects‖ test set forth
in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144 (Mendoza-Martinez),
―[have] an overwhelming punitive effect‖ and served to increase the punishment
for defendant‘s assault conviction beyond the statutory maximum.
We granted review in Mosley I, ordered briefing deferred, and held the
matter for the then-pending decision in In re E.J. (2010) 47 Cal.4th 1258 (E.J.). In
E.J., we subsequently rejected an ex post facto challenge to the residency
restrictions, as applied to four registered sex offenders who committed crimes
prior to Jessica‘s Law, but who were released on parole for those crimes after the
initiative measure became effective. We held that including the residency
restrictions as mandatory parole conditions did not violate the ex post facto clauses
by imposing punishment for the earlier crimes beyond that applicable when they
were committed. We explained that the residency restrictions applied ―to events
occurring after‖ the statute‘s effective date — the release of the petitioners on
parole, and their subsequent residency in noncompliant housing, and thus did not
constitute punishment for the original offenses. (Id. at p. 1280.)
After our decision in E.J. became final we retransferred the cause in
Mosley I to the Court of Appeal for reconsideration in light of our holding in E.J.
In a second published opinion, the Court of Appeal again concluded defendant
9
was subject to the residency restrictions by virtue of the registration order, and that
although sex offender registration itself may be regulatory, the restrictions, under
application of the Mendoza-Martinez test, have an ―overwhelming punitive
effect.‖ Accordingly, the Court of Appeal again struck the trial court‘s registration
order, affirming the judgment of conviction as so modified.
We granted the People‘s petition for review.6
DISCUSSION
As noted, in Apprendi, the high court established that a criminal defendant
generally has the Sixth Amendment right to a jury determination, beyond
reasonable doubt, of ―any fact that increases the penalty for a crime beyond the
prescribed statutory maximum.‖ (Apprendi, supra, 530 U.S. at p. 490.)
Defendant claims that his registration order is invalid because it increased the
maximum penalty, or punishment, for his simple assault conviction and was
imposed solely on the basis of findings made by a judge, not a jury.
Defendant concedes that sex offender registration itself does not constitute
a penalty, or punishment, for purposes of constitutional analysis. (See, e.g.,
Smith v. Doe (2003) 538 U.S. 84, 93, 105-106 [sex offender registration statutes
serve the legitimate nonpunitive governmental objective of protecting the public
from sex offenders]; People v. Picklesimer (2010) 48 Cal.4th 330, 343-344
(Picklesimer) [because sex offender registration is not punishment, Apprendi does
not require jury findings to support registration order]; People v. Presley (2007)
156 Cal.App.4th 1027, 1033-1035 [same].) But he urges, and the Court of Appeal
6 Amici curiae briefs have been filed in support of defendant by the
California Public Defenders Association, the California Attorneys for Criminal
Justice, and the California Coalition on Sexual Offending/Association for the
Treatment of Sexual Abusers (joint brief).
10
agreed, that the residency restrictions established by Jessica‘s Law are punitive,
and that jury findings were thus required to support the registration order to which
the restrictions attached.
The People oppose this conclusion on multiple grounds. They first urge
that defendant‘s Apprendi argument fails at the threshold, because, contrary to his
insistence, his registration order does not include any obligation to comply with
the residency restrictions of Jessica‘s Law. The People posit that the residency
restrictions of section 3003.5(b) apply only to paroled sex offender registrants
while they are on parole, and have no effect on nonparolee registrants such as
defendant.
However, we need not, and do not, decide this threshold statutory
construction issue in advance of any concrete evidence of prosecutors‘ intent to
press charges against nonparolee sex offender registrants for noncompliance with
the residency restrictions. 7 Even if we assume the restrictions do impose
7 We took a similar restrained approach in E.J., wherein we rejected two
facial constitutional challenges to section 3003.5(b) as a parole condition. We
explained, ―[t]he further question of whether section 3003.5(b) also created a
separate new misdemeanor offense applicable to all sex offenders subject to the
registration requirement of section 290, irrespective of their parole status, is not
before us, as there is no allegation or evidence that these petitioners, or any other
registered sex offenders, whether on parole or otherwise, have ever been
separately charged with such an offense under the new provision.‖ (E.J., supra,
47 Cal.4th at p. 1271, fn. 5.)
Citing canons of judicial economy and restraint, the concurring and
dissenting opinion criticizes us at length for extending E.J.‘s approach to the
instant case. Here, the concurring and dissenting opinion reasons, if a court can
find at the outset that section 3003.5(b) does not apply to nonparolee sex offender
registrants, his Apprendi claim can be rejected, and the case can be decided,
without the need to examine any constitutional questions. But the concurring and
dissenting opinion then argues that the statute does apply to all registered sex
offenders, both parolee and nonparolee. This makes it necessary for the
(footnote continued on next page)
11
criminally enforceable obligations on nonparolee registrants such as defendant, we
are persuaded, for three independently dispositive reasons, that Apprendi does not
invalidate the registration order here at issue. We explain our conclusions in
detail.
A. Apprendi and Oregon v. Ice.
In Apprendi, the defendant pleaded guilty to two counts of unlawful
weapons possession and one count of unlawful possession of a bomb. A separate
New Jersey hate crime statute provided for an ― ‗extended term‘ of imprisonment
if the trial judge [found], by a preponderance of the evidence, that ‗[t]he defendant
in committing the crime acted with a purpose to intimidate an individual or group
of individuals because of race, color, gender, handicap, religion, sexual orientation
or ethnicity.‘ ‖ (Apprendi, supra, 530 U.S. at pp. 468-469.) None of the charged
counts referred to the hate crime statute, and none alleged that Apprendi had acted
with a racially biased purpose. At sentencing, the trial court found, by a
preponderance of the evidence, that Apprendi‘s crime under one count to which he
had pled guilty was motivated by racial bias within the meaning of the hate crime
(footnote continued from previous page)
concurring and dissenting opinion to proceed to the constitutional issues in any
event. Respectfully, we fail to see how judicial economy and restraint are thereby
served. Under the particular circumstances, where no issue of a possible violation
of section 3003.5(b) by defendant or anyone else is presented, we remain
persuaded, as the concurring and dissenting opinion suggests, that the statutory
question is not ripe for decision. Concluding, as we do, that Apprendi is
inapplicable to the residency restrictions of Jessica‘s Law even if they extend to
nonparolee sex offender registrants, we believe true adherence to judicial restraint
and economy counsels against an unnecessary detour into an analysis of the
statutory meaning.
12
statute, which court-made finding resulted in an increased term of imprisonment
for that count. (Id. at pp. 470-471.)
The high court in Apprendi observed that the Sixth Amendment right to
trial by jury, and the Fourteenth Amendment right to due process of law in
criminal matters, ―constitutional protections of surpassing importance‖ (Apprendi,
supra, 530 U.S. at p. 476), together ―indisputably entitle a criminal defendant to ‗a
jury determination that [he or she] is guilty of every element of the crime with
which he [or she] is charged, beyond a reasonable doubt.‘ ‖ (Id. at p. 477.) The
court further found that the Sixth Amendment jury trial right applied equally to
any enhancements to the crime used to impose additional punishment. (Id. at
p. 476.) The court summarized its holding as follows: ―Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.‖ (Id. at p. 490.)
In decisions that followed in the wake of Apprendi, the high court
expounded on what it meant by the phrase ―any fact that increases the penalty for
a crime beyond the prescribed statutory maximum.‖ (Apprendi, supra, 530 U.S. at
p. 490, italics added.) In Ring v. Arizona (2002) 536 U.S. 584 (Ring), the court
held that allowing the sentencing judge, rather than the jury, to find aggravating
circumstances necessary to impose the death penalty violates a capital defendant‘s
Sixth Amendment jury trial right under Apprendi. (Ring, at pp. 602, 609.) In
Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the court held that ―the
‗statutory maximum‘ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant.‖ (Id. at p. 303.) In United States v. Booker (2005) 543 U.S. 220
(Booker), the court held that the federal sentencing guidelines violated the Sixth
Amendment right to a jury trial by allowing the court to impose sentence
13
enhancements based on its own fact finding, and severed the guideline provisions
that made them mandatory. (Id. at pp. 226-227.) The court in Booker explained
that one principle it sought to vindicate in Apprendi was the avoidance of
― ‗arbitrary punishments upon arbitrary convictions‘ without the benefit of a jury.‖
(Id. at pp. 238-239.) And in Cunningham v. California (2007) 549 U.S. 270
(Cunningham), the court held that California‘s then operative determinate
sentencing law violated a criminal defendant‘s right to trial by jury by ―allow[ing]
a judge to impose a sentence above the statutory maximum based on a fact, other
than a prior conviction, not found by a jury or admitted by the defendant.‖ (Id. at
p. 275.)
Although the high court has not specifically defined the word ―penalty‖ as
used in Apprendi (―any fact that increases the penalty for a crime beyond the
prescribed statutory maximum‖ (Apprendi, supra, 530 U.S. at p. 490, italics
added)), Apprendi itself involved a court-made factual finding that directly
increased the length of the prison sentence for the crime to which the defendant
had pled guilty. Likewise, longer prison terms for the crimes of which the
defendants had been convicted, based on facts found by the sentencing court, and
not a jury, were also at the heart of the high court‘s post-Apprendi decisions in
Blakely, supra, 542 U.S. at page 303; Booker, supra, 543 U.S. at pages 226-227;
and Cunningham, supra, 549 U.S. at page 275. In Ring, supra, 536 U.S. at
pages 602, 609, the ultimate penalty of death, as opposed to a term of life without
parole for capital murder, was implicated in similar fashion.
The high court‘s decision in Ice, supra, 555 U.S. 160, refined and
circumscribed the scope of the rule of Apprendi and its progeny in significant
ways. Ice was decided nearly two years before the Court of Appeal filed its
decision in this matter. Although neither the parties‘ briefs in the Court of Appeal,
14
nor that court‘s decision, mentions or discusses Ice, we are duty bound to consider
its application to the Apprendi claim here before us.
In Ice, the defendant claimed the facts underlying a decision to impose
consecutive sentences must be made by a jury within the meaning of Apprendi‘s
Sixth Amendment jury trial guarantee. Rejecting the claim, the high court
distinguished sentencing for multiple offenses from the imposition of increased
punishment for a particular crime, which was at the heart of the holdings in
Apprendi and its progeny. (Ice, supra, 555 U.S. at pp. 167-168.)
The court in Ice first observed that ―[o]ur application of Apprendi‘s rule
must honor the ‗long-standing common-law practice‘ in which the rule is rooted.
[Citation.] The rule‘s animating principle is the preservation of the jury‘s historic
role as a bulwark between the State and the accused at the trial for an alleged
offense.‖ . . . Apprendi, 530 U.S., at 477.‖ (Ice, supra, 555 U.S., at pp. 167-168
The court then explained that ―the Sixth Amendment does not countenance
legislative encroachment on the jury‘s traditional domain‖ (Ice, at p. 168, citing
Apprendi, supra, 530 U.S. at p. 497); that the appropriate consideration in
Apprendi was therefore ―whether the finding of a particular fact was understood as
within ‗the domain of the jury . . . by those who framed the Bill of Rights‘ (Harris
v. United States (2002) 536 U.S. 545, 557)‖ (Ice, at p. 168); and that ―[i]n
undertaking this inquiry, we remain cognizant that administration of a discrete
criminal justice system is among the basic sovereign prerogatives States retain.
(Patterson v. New York (1977) 432 U.S. 197, 201.)‖ (Ice, at p. 168.)
The high court further explained, ―These twin considerations — historical
practice and respect for state sovereignty — counsel against extending Apprendi‘s
rule to the imposition of [consecutive] sentences‖ because ―[t]he decision to
impose sentences consecutively is not within the jury function that ‗extends down
centuries into the common law.‘ Apprendi, 530 U.S. at p. 477.‖ (Ice, supra, 555
15
U.S. at p. 168.) The court observed that, historically, ―the jury played no role in
the decision to impose sentences consecutively or concurrently. Rather, the choice
rested exclusively with the judge.‖ (Ibid.) ―In light of this history,‖ the court
declared, ―legislative reforms regarding the imposition of multiple sentences do
not implicate the core concerns that prompted our decision in Apprendi. There is
no encroachment here by the judge upon facts historically found by the jury, nor
any threat to the jury‘s domain as a bulwark at trial between the State and the
accused.‖ (Id. at p. 169.)
The court distinguished its decision in Cunningham, supra, 549 U.S. 270,
explaining why that decision ―[did] not control‖ on the facts before it. (Ice, supra,
555 U.S. at p. 170.) ―[W]e held in Cunningham that the facts permitting
imposition of an elevated ‗upper term‘ sentence for a particular crime fell within
the jury‘s province. [Citation.] The assignment of such a finding to the
sentencing judge implicates Apprendi‘s core concern: a legislative attempt to
‗remove from the [province of the] jury‘ the determination of facts that warrant
punishment for a specific statutory offense. Apprendi, 530 U.S., at p. 490 (internal
quotation marks omitted). We had no occasion to consider the appropriate inquiry
when no erosion of the jury‘s traditional role was at stake. Cunningham thus does
not impede our conclusion that, as Apprendi‘s core concern is inapplicable to the
issue at hand, so too is the Sixth Amendment‘s restriction on judge-found facts.‖
(Ice, supra, 555 U.S. at p. 170.)
The court in Ice reasoned further, ―States‘ interest in the development of
their penal systems, and their historic dominion in this area, also counsel against
the extension of Apprendi that [the defendant] requests. Beyond question, the
authority of States over the administration of their criminal justice systems lies at
the core of their sovereign status. [Citation.] We have long recognized the role of
the States as laboratories for devising solutions to difficult legal problems.
16
[Citation.] This Court should not diminish that role absent impelling reason to do
so.‖ (Ice, supra, 555 U.S. at pp. 170-171.)
Finally, the high court in Ice cautioned, ―. . . States currently permit judges
to make a variety of sentencing determinations other than the length of
incarceration. Trial judges often find facts about the nature of the offense or the
character of the defendant in determining, for example, the length of supervised
release following service of a prison sentence; required attendance at drug
rehabilitation programs or terms of community service; and the imposition of
statutorily prescribed fines and orders of restitution. [Citation.] Intruding
Apprendi‘s rule into these decisions on sentencing choices or accoutrements surely
would cut the rule loose from its moorings.‖ (Ice, supra, 555 U.S. at pp. 171-172.)
As pointed out (and criticized) by the dissent in Ice, the focus of the
majority‘s rationale was not on whether the trial court‘s finding of facts necessary
to support the imposition of consecutive sentences increased the overall
punishment for the defendant‘s crimes ―beyond the prescribed statutory
maximum‖ (Apprendi, supra, 530 U.S. at p. 490). (Ice, supra, 555 U.S. at p. 173
(dis. opn. of Scalia, J.).) Nor, it may be observed, did the majority in Ice seek to
apply the multi-factor intent/effects test for ―punishment‖ fashioned earlier in
Mendoza-Martinez, supra, 372 U.S. 144, or otherwise attempt to determine if
imposition of consecutive sentences ―increases the penalty for a crime beyond the
prescribed statutory maximum.‖ (Apprendi, supra, 530 U.S. at p. 490.) Instead,
the majority in Ice relied on historical practice evidencing the absence of any
traditional role played by jury at common law in the determination whether to
impose consecutive sentences, as well as principles of state sovereignty over the
States‘ administration of their criminal justice systems, to conclude Apprendi‘s
Sixth Amendment jury trial guarantee is not implicated in a decision to impose
consecutive sentences.
17
This narrowed scope and proper focus of Apprendi‘s rule was again
highlighted in Southern Union Co. v. U. S. (2012) ___ U.S. ___ [132 S.Ct. 2344]
(Southern Union). In that case, the high court held that ―the rule of Apprendi
applies to the imposition of criminal fines.‖ (Id. at p.___ [132 S.Ct. at p. 2357].)
The court based its holding on ―ample historical evidence showing that juries
routinely found facts that set the maximum amounts of fines.‖ (Id. at p. ___
[132 S.Ct. at p. 2356].) The court explained that ―the salient question here is what
role the jury played in prosecutions for offenses that did peg the amount of a fine
to the determination of specified facts — often, the value of damaged or stolen
property. [Citation.] Our review of state and federal decisions discloses that the
predominant practice was for such facts to be alleged in the indictment and proved
to the jury. [Citations.]‖ (Id. at pp.___-___ [132 S.Ct. at pp. 2353-2354], italics
added.) The court concluded that criminal fines, like imprisonment or a death
sentence, constituted a form of punishment at common law, in which the jury
traditionally determined the underlying factual basis. (Id. at pp. ___-___ [132 S.Ct
at pp. 2350-2351].) The court in Southern Union reiterated that ― ‗the scope of the
constitutional jury right must be informed by the historical role of the jury at
common law.‘ ‖ (Id., at p. ___ [132 S.Ct. at p. 2353], quoting Ice, supra, 555 U.S.
at p. 170; see also Blakely, supra, 542 U.S. at pp. 301-302; Apprendi, supra, 530
U.S. at pp. 477-484.)
The rationale and holding of Ice compel the conclusion that defendant‘s
discretionary registration order, based on factual findings made by the court
pursuant to statute (§ 290.006), as well as any further consequence that, as a
registered sex offender, he must now comply with section 3003.5(b)‘s statutory
residency restrictions, do not implicate Apprendi‘s Sixth Amendment jury trial
right. Apprendi is inapplicable because sex offender registration and residency
18
requirements are not sentencing matters in which, historically, the jury has played
any traditional role at common law.
Instead, both residency restrictions and underlying sex offender registration
requirements are modern regulatory sentencing imperatives unknown at common
law. They are akin to ―a variety of sentencing determinations other than the length
of incarceration,‖ of relatively recent vintage, in which ―trial judges often find
facts about the nature of the offense or the character of the defendant‖ — such as
―the length of supervised release following service of a prison sentence; [and]
required attendance at drug rehabilitation programs or terms of community
service.‖ (Ice, supra, 555 U.S. at p. 171) They are additional examples of
―sentencing choices or accoutrements‖ (id., at p. 172) in which juries have played
no historical role, and which do not implicate the Sixth Amendment jury trial
guarantee within the meaning of Apprendi.8
The fact that any obligation to comply with the residency restrictions
follows from the sex offender‘s status as a section 290 registrant and the statutory
imperative of section 3003.5(b), rather than from court-made factual findings
specifically addressed to those restrictions, does not change the analysis or result.
The holding in Ice was not predicated on a determination of the historical role
traditionally played by the judge at common law. Nor was it otherwise limited to
8 In Southern Union, the court later circumscribed Ice‘s reference to
―statutorily prescribed fines‖ (Ice, supra, 555 U.S. at p. 171) as an example of
sentencing determinations in which juries played no traditional role. (Southern
Union, supra, ___ U.S. at p. ___, fn. 5 [132 S.Ct. at p. 2352, fn. 5.]) The Southern
Union court explained that, contrary to Ice‘s suggestion, juries did have historical
involvement in finding the facts underlying the permissible amounts of criminal
fines. But the court expressed no criticism or limitation with respect to the other
examples cited in the Ice text quoted above.
19
sentencing choices already specifically entrusted to judges rather than juries at the
time the Bill of Rights was drafted and adopted. Instead, it rested solely on the
absence of any “historical role” traditionally played by the jury “at common law”
respecting the imposition of consecutive sentences. (Ice, supra, 555 U.S. at
p. 170, italics added.) Here, as in Ice, there is no jury tradition connected to the
sentencing decision at issue.9
Our conclusion is buttressed by the other of the ―twin considerations‖
emphasized in Ice — ―respect for state sovereignty‖ (Ice, supra, 555 U.S. at
p. 168). Residency restrictions like those set forth in Jessica‘s Law are exercises
of the states‘ authority ―over the administration of their criminal justice systems
which lies at the core of their sovereign status.‖ (Id. at p. 171.) Measures of this
kind involve the states‘ predominant responsibility to ― ‗prevent[ ] and deal[ ] with
9 The concurring and dissenting opinion virtually reads the ―historic jury
role‖ analysis out of Ice. Citing selected language from Ice and Southern Union,
the concurring and dissenting opinion suggests these decisions, taken together,
leave Apprendi rigidly applicable to each and every factual determination, of
whatever kind or nature, that is necessary to impose a particular kind or degree of
―punishment‖ for any discrete crime except the pettiest — even if common law
juries were never involved with the sentencing determination at issue. But the
high court‘s approach in Southern Union belies such a conclusion. There, the
majority did not simply hold that because a significant criminal fine is
―punishment‖ for a discrete crime, a jury must find any facts necessary to impose
it. Instead, as we have indicated, the majority stressed that, in any event, the court
of appeals had acted ―correct[ly]‖ by examining the jury‘s traditional role with
respect to monetary fines in particular, because the constitutional right to a jury
― ‗must be informed‘ ‖ by common law tradition. (Southern Union, supra,
___ U.S. at p. ___ [132 S.Ct. at p. 2353], quoting Ice, supra, 555 U.S. at p. 170.)
The majority then engaged in its own careful historical examination to assure itself
that juries had indeed commonly found the facts necessary to determine the
permissible amounts of criminal fines. (Southern Union, supra, at pp. ___-___
[132 S.Ct. at pp. 2353-2356].) Here, by contrast, it is manifest that juries had no
traditional role in the imposition of modern sentencing options, such as sex
offender residency restrictions, that were unknown at common law.
20
crime‘ ‖ and their role as ―laboratories for devising solutions to difficult legal
problems.‖ (Ibid.) They are relatively modern attempts to address, by means
short of secure confinement, the persistent problem of recidivism among sex
offenders, particularly as it endangers the most vulnerable potential victims.10 As
Ice suggested, such efforts should not be hampered by extension of the jury-trial
right beyond its core ―absent impelling reason to do so.‖ (Ibid.)
A requirement that a jury make all findings necessary to allow a judge to
impose a sex offender registration requirement, with any attendant residency
restrictions, would interfere with these efforts by creating practical difficulties
similar to those cited in Ice itself. Under California‘s scheme for discretionary
imposition of sex offender registration, the necessary predicate findings — in
particular, the defendant‘s likelihood of reoffense — are not of a kind typically
determined by a jury when considering the basic elements of a discrete criminal
charge. The facts bearing on such a predictive assessment ―could substantially
prejudice the defense at the guilt phase of a trial. As a result, bifurcated . . . trials
might often prove necessary.‖ (Ice, supra, 555 U.S. at p. 172.) As in Ice, ―[w]e
will not so burden [our] trial courts absent any genuine affront to Apprendi‘s
instruction.‖ (Ibid.) 11
10 Proposition 83 explicitly stated that it was aimed at confronting the ―very
high recidivism rates‖ among sex offenders, and their special danger to children.
Relying on a report by the United States Department of Justice, the initiative
declared that, of all violent felons, ―sex offenders are the least likely to be cured
and the most likely to reoffend, and they prey on the most innocent members of
our society. More than two-thirds of the victims of rape and sexual assault are
under the age of 18.‖ (Ballot Pamp., supra, text of Prop. 83, § 2, subd. (b), at
p. 127.)
11 The concurring and dissenting opinion does not address this aspect of Ice‘s
analysis.
21
The Court of Appeal did not consider the impact of the holding in Ice,
supra, 555 U.S. 160, on defendant‘s Apprendi claim. We have done so. Because
there is no common law jury trial tradition related to sex offender registration and
residency requirements, and because imposition of such a procedure now would
interfere unduly with California‘s exercise of its sovereign right, and its
predominant responsibility, to seek to prevent sex offenses against children, we
conclude that the rationale of Ice applies here. On this basis alone, defendant‘s
Apprendi claim must be rejected.
B. Residency restrictions as “penalty for a crime.”
In any event, even if applicable to defendant, the residency restrictions of
Jessica‘s Law are not, on their face, an added ―penalty‖ for his conviction to which
Apprendi applies. Like sex offender registration requirements, the restrictions are
not intended as punishment or retribution for the offense or offenses that led to
their imposition. Rather, their purpose is to serve a legitimate regulatory goal —
reducing the opportunity for persons convicted of sexually related crimes, who are
at large in the community but still deemed dangerous, to reoffend in the future.
The restrictions may lead to significant disabilities in individual cases, but in the
abstract, they do not so resemble traditional forms of punishment, and are not so
clearly punitive in effect, as to override their regulatory aim. For this separate
reason, Apprendi does not require that they be justified at the outset by jury
findings.
Recently rejecting an argument that Apprendi is violated when statutory sex
offender registration is imposed solely on the basis of judge-made findings, we
observed, ―[a]s we have explained, ‗sex offender registration is not considered a
form of punishment under the state or federal Constitutions [citations] . . . .‘
(Hofsheier, supra, 37 Cal.4th at p. 1197; see also Smith v. Doe[, supra,] 538 U.S.
84, 105-106 [sex offender registration is not punishment for purposes of the ex
22
post facto clause].) Accordingly, Apprendi‘s requirement that ‗[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt‘ (Apprendi, at p. 490) has no application here. [Citations.]‖
(Picklesimer, supra, 48 Cal.4th at pp.343-344.)
This analysis — and in particular, the citation to Smith v. Doe — signaled
that, when addressing Apprendi challenges to restrictions on convicted sex
offenders, we are guided by the factors Smith v. Doe identified as relevant to
determining whether attempts to control dangerous sex criminals constitute
punishment. We adopt that procedure here.
In doing so, we begin with the settled principle that in the interest of
protecting public safety, ―an imposition of restrictive measures on sex offenders
adjudged to be dangerous is ‗a legitimate nonpunitive governmental objective and
has been historically so regarded.‘ [Citation.]‖ (Smith v. Doe, supra, 538 U.S. 84,
93.) At the outset, therefore, the inquiry is whether the state legislative authority,
in adopting a law allowing a court to impose such restrictions, intended them as
punishment, or instead meant to adopt a nonpunitive regulatory scheme. (Id., at
p. 92.)
Of course, ―[i]f the intention . . . was to impose punishment, that ends the
inquiry. If, however, the intention was to enact a regulatory scheme that is civil
and nonpunitive, we must further examine whether the . . . scheme is ‗ ―so
punitive either in purpose or effect as to negate [the State‘s] intention‖ to deem it
―civil.‖ ‘ [Citation.] Because we ‗ordinarily defer to the legislature‘s stated
intent‘ [citation], ‗ ―only the clearest proof‖ will suffice to override legislative
intent and transform what has been denominated a civil remedy into a criminal
penalty,‘ [citations].‖ (Smith v. Doe, supra, 538 U.S. 84, 92.)
23
―In analyzing the effects of the [legislative] [a]ct, we refer to the seven
factors noted in . . . Mendoza-Martinez, [supra,] 372 U.S. 144, 168-169, as a
useful framework. The factors most relevant to our analysis are whether, in its
necessary operation, the regulatory scheme: has been regarded in our history and
traditions as a punishment; imposes an affirmative disability or restraint; promotes
the traditional aims of punishment; has a rational connection to a nonpunitive
purpose; or is excessive with respect to this purpose.‖ (Smith v. Doe, supra,
538 U.S. 84, 97.) We analyze these factors ―in relation to the statute on its face.‖
(Mendoza-Martinez, supra, 372 U.S. at p. 169.)12
Because of the structure and scope of Proposition 83, the measure did not
specifically state why the voters adopted the residency restrictions in particular.
The initiative included wide-ranging provisions, some clearly punitive, to combat
the problem of sex offender recidivism. Besides establishing the residency
restrictions now set forth in section 3003.5(b), Proposition 83 broadened the
definition of certain sex offenses. As to some such crimes, it prohibited probation,
mandated longer prison terms, eliminated early release credits, and extended the
period of parole. It imposed compulsory lifetime GPS monitoring on persons
required to register as sex offenders because of felonies for which they were
imprisoned. And it expanded the reach of the laws governing the civil
commitment of sexually violent predators. (See Ballot Pamp., supra, analysis of
Prop. 83 by Legis. Analyst, at pp. 43-44.)
12 Because we here address a narrow claim that the residency restrictions are
facially and inherently punitive for purposes of Apprendi, we are thus unpersuaded
by the concurring and dissenting opinion‘s references to secondary sources
suggesting that the restrictions have had adverse practical effects among registered
sex offenders throughout the state. (But see fn. 15, post.)
24
The findings set forth in Proposition 83 suggest that, overall, the electorate
had a mix of punitive, deterrent, and protective motives. The measure they
adopted was officially titled The Sexual Predator Punishment and Control Act:
Jessica‘s Law. (Ballot Pamp., supra, text of Prop. 83, § 1, at p. 127, italics added.)
It included statements that California ―places a high priority on maintaining public
safety through . . . laws that deter and punish criminal behavior.‖ (Id., § 2,
subd. (a), italics added.) It declared that ―Californians have a right to know about
the presence of offenders in their communities, near their schools, and around their
children‖ (id., subd. (g), at p. 127), but ―must also take additional steps to monitor
sex offenders, to protect the public from them, and to provide adequate penalties
for and safeguards against sex offenders, particularly those who prey on children‖
(id., subd. (h), at p. 127 (italics added)). With the changes incorporated in
Proposition 83, the measure averred, ―Californians will be in a better position to
keep themselves, their children, and their communities safe from the threat posed
by sex offenders.‖ (Id., subd. (e), at p. 127.) Thus, Proposition 83 asserted, ―It is
the intent of the People in enacting this measure to help Californians better protect
themselves, their children, and their communities; it is not the intent of the People
to embarrass or harass persons convicted of sex offenses.‖ (Id., subd. (f) , at
p. 127.)
The protective aims of the residency restrictions in particular come into
clearer focus in the ballot arguments by supporters of Proposition 83. The
argument in favor of the measure asserted that ―Proposition 83 — Jessica‘s Law
— will protect our children by keeping child molesters . . . away from schools and
parks‖ and will ―[c]reate predator free zones around schools and parks to prevent
sex offenders from living near where our children learn and play.‖ (Ballot Pamp.,
supra, argument in favor of Prop. 83, at p. 46, word capitalization and italics
omitted.) According to the proponents, ―Proposition 83 means dangerous child
25
molesters will be kept away from our children.‖ (Ibid., italics omitted.) In their
rebuttal to the opponents‘ argument, supporters of Proposition 83 insisted that
―Jessica‘s Law will stop dangerous sex offenders from living near schools and
parks where they can stalk and prey on our children.‖ (Ballot Pamp., rebuttal to
argument against Prop. 83, at p. 47 (word capitalization omitted).)
These provisions strongly indicate that any restrictions imposed by the
electorate on where registered sex offenders may live were not intended to add to
the punishment for a criminal conviction. Rather, the clear aim was to promote
public safety by ensuring that children could learn and play in zones where they
would not encounter registered sex offenders who lived nearby.
Indeed, ―where a legislative restriction ‗is an incident of the State‘s power
to protect the health and safety of its citizens,‘ it will be considered ‗as evidencing
an intent to exercise that regulatory power, and not a purpose to add to the
punishment.‘ [Citation.]‖ (Smith v. Doe, supra, 538 U.S. at p. 93.) A contrary
conclusion is not compelled insofar as the residency restrictions of Jessica‘s Law
were placed in the Penal Code and made it ―unlawful‖ to reside near a school or
park. (Id., at p. 94.)
Accordingly we, like the Court of Appeal, are persuaded that the electorate
had a regulatory, nonpunitive purpose. We therefore consider whether the
restrictions, if generally applicable to nonparolee registered sex offenders in
California, nonetheless have such a necessary punitive effect as to override this
nonpunitive intent, and thus to require jury findings before they can be imposed.
We conclude they do not.
When addressing the issue of punitive effect, the Court of Appeal was
strongly influenced by the degree of affirmative disability or restraint it perceived
in the residency restrictions. The Court of Appeal stressed that the restrictions
include no ―grandfather provisions‖ or grace periods. Hence, the court observed, a
26
registered sex offender cannot stay in his or her own home if it lies within a
prohibited area, and an offender must move from an already established residence
if a school or park later opens nearby.13 In such a case, the court noted, the
offender and his or her family must either relocate as a group or live apart.
Moreover, the court pointed out, it may be difficult to find compliant housing
―given the sweeping nature of the zone[s] of exclusion,‖ and the restricted choice
of residence may also affect the offender‘s employment, and his or her access to
medical care, rehabilitation programs, and elder assistance. Indeed, the court
suggested, the constant threat of ouster, and of difficulty in relocating, ― ‗seems a
significant deprivation of [registered sex offenders‘] liberty and property interests.
It sentences them to a life of transience, forcing them to become nomads.‘ ‖
(Quoting Mikaloff v. Walsh (N.D. Ohio 2007) 2007 WL 2572268 at p. *10
(Mikaloff).) Further, the court believed, these features of the residency restrictions
render them ―akin to banishment, a traditional form of punishment.‖
There is no doubt that the residency restrictions of Jessica‘s Law can
produce significant difficulties and inconveniences in particular areas and
individual cases. (See fn. 15, post.) But we are not persuaded that they so
resemble traditional punishment, or are necessarily so harsh, as to compel a
conclusion that their punitive effect overrides their regulatory intent.
Though potentially burdensome, the terms of the residency restrictions are
limited. ―[They] impose[ ] no physical restraint, and so [do] not resemble the
punishment of imprisonment, which is the paradigmatic affirmative disability or
13 Stretching its ―parade of horribles‖ to the maximum, the Court of Appeals
went so far as to observe that ―[c]ommunity groups may set up private schools to
force offenders to move away.‖ (Citing Mann v. Georgia Dept. of Corrections
(Ga. 2007) 653 S.E.2d 740, 756.)
27
restraint. [Citation.]‖ (Smith v. Doe, supra, 538 U.S. at p. 100.) They infringe
upon personal liberties far less than does the ―post-incarceration confinement‖ of
dangerously disordered sex offenders, which the high court has recognized as ― ‗a
legitimate nonpunitive government objective.‘ ‖ (Id., at p. 93; see Kansas v.
Hendricks (1997) 521 U.S. 346, 363; Hubbart v. Superior Court (1998) 19 Cal.4th
1138, 1173.) They do not regulate a registered sex offender‘s daily activities, and
they seem, on their face, no harsher ―than the sanction[ ] of occupational
debarment, which [the high court has also] held to be nonpunitive. [Citations.]‖
(Smith v. Doe, at p. 100.)
Nor are the restrictions akin to banishment. One subject to them is not
thereby excluded from the state or any part thereof. They do not dictate where he
or she may travel, visit, shop, eat, work, or play. Even the law‘s domiciliary
prohibitions are, by their terms, confined to specified geographic areas relevant to
the regulatory purpose they serve. Hence, they do not, on their face, meet or
approach the traditional definition of banishment — the entire dismissal,
expulsion, or casting out from one‘s community, and into exile. (See, e.g., Black‘s
Law Dict. (10th ed. 2014) p. 695, col. 1 [―Exile‖ is ―[e]xpulsion from a country,
esp. from the country of one‘s origin or longtime residense‖]; banishment
1 Oxford English Dict. (2d ed. 1989) p. 929, col. 2 [―Banishment‖ is ―[t]he action
of authoritatively expelling [one] from the country; a state of exile; expatriation;‖
―[t]he action of peremptorily sending [one] away; a state of enforced absence;
dismissal.‖].)14
14 We are not persuaded toward a finding of punishment by the Court of
Appeal‘s suggestion that the residency restrictions may infringe the property rights
of registered sex offenders by denying them the residential use of noncompliant
housing they already own or lease. Even statutes calling for the forfeiture of
property may be deemed nonpunitive where adopted for a regulatory and remedial
(footnote continued on next page)
28
Further, the restrictions do not take on the character of punishment by
comparison to forms of conditional, supervised postconviction release, such as
probation and parole, which might be considered punitive. (See Smith v. Doe,
supra, 538 U.S. at p. 101; cf., People v. Nuckles (2013) 56 Cal.4th 601, 609.) As
applied to nonparolees such as defendant, the residency restrictions involve no
oversight or supervision by penal authorities. Their violation cannot result in
revocation of a conditional release; rather, the only arguable sanction is ―a
[criminal] proceeding separate from the individual‘s original offense.‖ (Smith v.
Doe, at p. 102.) The possibility of criminal prosecution for violation of the
restrictions is simply calculated to give effect to a ―valid regulatory‖ measure, and
does not make them punitive. (Ibid.)
Similarly, there is little relevance to the fact that the restrictions, like
criminal punishment, are aimed at deterring future crimes, and might have that
effect. ―Any number of governmental programs might deter crime without
imposing punishment. ‗To hold that the mere presence of a deterrent purpose
renders such sanctions ―criminal‖ . . . would severely undermine the
Government‘s ability to engage in effective regulation.‘ [Citations.]‖ (Smith v.
Doe, supra, 538 U.S. at p. 102.) Indeed, the primary deterrence of the residency
restrictions is not a threat that wrongdoing will be met with sanctions — the
premise of punishment. Rather, it is simply a way to reduce registered sex
(footnote continued from previous page)
purpose. (See, e.g., United States v. One Assortment of 89 Firearms (1984)
465 U.S. 354 [after defendant was acquitted of dealing in firearms without a
license, in rem action for forfeiture of the unlicensed firearms at issue, where
action was authorized for regulatory purpose of limiting availability of such
weapons to undesirable persons, was nonpunitive for purposes of double jeopardy
clause].)
29
offenders‘ contact with children on whom they might prey by ensuring that such
persons will not live near where children routinely gather.
Finally, the real-life consequences of the residency restrictions of Jessica‘s
Law may vary widely from person to person, and from case to case. Unlike
registration requirements, which demand periodic affirmative acts from all
registrants throughout their lifetimes (see Hofsheier, supra, 37 Cal.4th at p. 1196),
the residency restrictions impose no additional obligations on registrants whose
domiciles of choice are, and remain, in compliance with Jessica‘s Law.15 In sum,
these restrictions do not necessarily inflict such onerous disabilities and restraints,
or otherwise so resemble common or traditional forms of punishment, that they
must be so labeled, for purposes of Apprendi, despite their regulatory and
nonpunitive intent.
15 In Taylor, supra, __ Cal.4th ___, the companion case we file today, we
address an as-applied challenge to the blanket enforcement of the residency
restrictions of Jessica‘s Law against registered sex offender parolees in San Diego
County. In that case, the trial court heard evidence indicating that in this populous
urban community, where dense development renders large areas off-limits for
residential purposes, and available, affordable compliant housing is scarce, such
blanket enforcement has indeed created widespread harsh conditions that
undermine the parolees‘ liberty and privacy rights while bearing no rational
relationship to the statute‘s regulatory purpose. Under those circumstances, we
have concluded the restrictions thus cannot constitutionally be so broadly enforced
in that locality, though they may still be imposed and enforced there as justified in
individual cases. Here, in a facial challenge to the validity, ab initio, of an order
individually imposed on defendant as the result of a judicial determination he is
sexually dangerous, we have no competent evidence of the actual effect on him, or
on any other nonparolee registered sex offender in the state. Thus, we have
neither occasion, nor basis, to conclude that the residency restrictions of Jessica‘s
Law, as applied to him, or generally to such persons throughout California, would
produce such harsh effects as to warrant a finding that the restrictions are punitive
for purposes of Apprendi. (See fn. 12, ante.)
30
We are further persuaded, as the Court of Appeal conceded, that the
residency restrictions are rationally related to a legitimate regulatory and
nonpunitive government purpose. Unlike the Court of Appeal, however, we find
they are not so excessive with respect to this purpose as to require a conclusion
that they constitute punishment.
As the high court has explained, a law‘s ―rational connection to a
nonpunitive purpose is a ‗most significant‘ factor in our determination that the
statute‘s effects are not punitive.‖ (Smith v. Doe, supra, 538 U.S. at p. 102.)
Here, the Court of Appeal acknowledged that ―[t]he residency restriction[s] [of
Jessica‘s Law are] rationally connected to the nonpunitive purpose of protecting
children in and around schools and parks.‖ This factor, the court agreed, ―weighs
against punitive effect.‖ In so concluding, the Court of Appeal was surely correct.
Nonetheless, the Court of Appeal found that the residency restrictions
suggest punishment because they are overbroad for their ostensible regulatory
purpose. The court reasoned that ―[b]arring all registered sex offenders from
living near any schools and parks — without considering whether their offenses
involved children, whether the exclusion zone provides adequate alternative
housing for them, or whether their exclusion from living near schools and parks
[actually] provides substantial protection to our children — is excessive to the
nonpunitive purpose of child protection.‖
But ―[a] statute is not deemed punitive simply because it lacks a close or
perfect fit with the nonpunitive aims it seeks to advance.‖ (Smith v. Doe, supra,
538 U.S. at p. 103.) The imprecision must be so great, the high court has
suggested, as to indicate that the statute‘s supposed regulatory purpose ―is a ‗sham
or mere pretext‘ . . . ‖ to impose punishment. (Ibid.) Such is not the case here.
At the outset, the residency restrictions of Jessica‘s Law are not overbroad,
and thus punitive, simply because they do not narrow the affected class to those
31
registered sex offenders who are most likely to attack children. Citing studies
similar to those later invoked by Proposition 83 itself, the court in Smith v. Doe
noted that the risk of recidivism among sex offenders generally ―is ‗frightening
and high‘ ‖ (Smith v. Doe, supra, 538 U.S. at p 103.). Consistent with ―grave
concerns over the high rate of recidivism among convicted sex offenders and their
dangerousness as a class,‖ the court observed, a legislative body can reasonably
conclude ―that a conviction for a sex offense provides evidence of substantial risk
of recidivism.‖ (Ibid.) Thus, a state is not precluded ―from making reasonable
categorical judgments that conviction of specified crimes should entail particular
regulatory consequences.‖ (Ibid.)
Similar principles apply to California‘s scheme for sex offender
registration, to which the residency restrictions of Jessica‘s Law may attach. An
automatic registration requirement applies to conviction of specified serious sex
crimes, including lewd acts with minors. The electorate could reasonably
conclude that such persons, as a class, present a general danger of reoffense
against which vulnerable children deserve special regulatory protection.
As particularly relevant to the issue before us here, sex offender registration
may be imposed in other cases only where, after conducting an individualized
assessment, a court finds that the nature of the defendant‘s crime, and other
information about the offender, indicate that he or she, in particular, is sexually
dangerous. Such findings were, of course, made in this case, after defendant was
convicted of assaulting a 12-year-old girl. Here too, the voters could reasonably
seek, by nonpunitive regulation, to protect vulnerable children against the risk of
recidivism by such an offender.
Nor is it fatal to a finding of legitimate regulation that the residency
restrictions are not necessarily the most efficacious and least disruptive approach
to affording such protection. ―The excessiveness inquiry . . . is not an exercise in
32
determining whether the [adopter of legislation] has made the best choice possible
to address the problem it seeks to remedy. The question is whether the regulatory
means chosen are reasonable in light of the nonpunitive objective.‖ (Smith v. Doe,
supra, 538 U.S. at p. 105.)16
The residency restrictions of Jessica‘s Law meet this standard. Defendant
fails to establish, by the ―clearest proof,‖ that the restrictions are facially punitive
in intent or effect. For this independent reason, we conclude that they are not
subject to the jury trial provisions of Apprendi.17
16 This principle is analogous to the general rule that a law will not be deemed
facially unreasonable for a legitimate government purpose simply because it may
arguably be unwise or improvident, or because it may have produced unforeseen
or unintended consequences. (See, e.g., FCC v. Beach Communications, Inc.
(1993) 508 U.S. 307, 314; Vance v. Bradley (1979) 440 U.S. 93, 97; but see
Taylor, supra, ___ Cal.4th ___ [as-applied challenge].)
17 Though the authority from other jurisdictions is not unanimous, a
substantial number of federal and state cases, relying prominently on Smith v. Doe,
have concluded that sex offender residency restrictions similar to California‘s are
legitimate regulatory measures, and are not facially punitive. (E.g., Weems v.
Little Rock Police Dept. (8th Cir. 2006) 453 F.3d 1010, 1017 [Ark. law; ex post
facto challenge; residency restrictions apply to offenders administratively screened
for high risk of reoffense]; Doe v. Miller (8th Cir. 2005) 405 F.3d 700, 718-723
[Iowa law; ex post facto challenge; statute includes ―grandfather‖ provision]; John
Does 1-4 v. Snyder (E.D.Mich. 2013) 932 F.Supp.2d 803, 810-814 [ex post facto
challenge]; Gautier v. Jones (W.D.Okla. 2009) 2009 WL 1444533 , at pp. *4-*9
[ex post facto challenge]; McAteer v. Riley (M.D.Ala. 2008) 2008 WL 898932, at
pp. *2-*5 [ex post facto challenge]; Doe v. Baker (N.D.Ga. 2006) 2006 WL
905368, at pp. *3-*6 [ex post facto challenge; restrictions upheld despite absence
of ―grandfather‖ provision]; Coston v. Petro (S.D.Ohio 2005) 398 F.Supp.2d 878,
885-887 [ex post facto challenge]; State v. Seering (Iowa 2005) 701 N.W.2d 655,
667-669 [ex post facto challenge]; Lee v. State (Ala. 2004) 895 So.2d 1038, 1041-
1043 [ex post facto challenge]; but see, e.g., Mikaloff, supra, 2007 WL 2572268,
at pp. *3-*12 [upholding ex post facto challenge to Ohio residency restrictions];
State v. Pollard (Ind. 2009) 908 N.E.2d 1145, 1148-1154 [finding residency
restrictions punitive as applied to offender who owned and was living in
(footnote continued on next page)
33
C. Separate validity of registration order.
Even were we to determine, under Apprendi, that the residency restrictions
of Jessica‘s Law cannot apply to defendant because they are not supported by jury
findings, it would not follow that the registration order imposed on defendant by
the trial judge under section 290.006 must be struck. Because sex offender
registration orders are not punishment in and of themselves, their imposition is not
subject to Apprendi. (See text discussion, ante.) This circumstance is not altered,
depending on whether residency restrictions validly attach to such an order by
operation of Jessica‘s Law. Thus, as the People observe, any conclusion that the
residency restrictions could not constitutionally be applied to defendant would not
create ―a constitutional bar to having a judge exercise his or her discretion to
determine whether [defendant] should . . . be subject to registration.‖
(Picklesimer, supra, 48 Cal.4th at p. 344.) In other words, the judge-imposed
registration order remains separately valid and extant, even if Apprendi would
prevent it from including the residency restrictions of Jessica‘s Law. For this
additional reason, the Court of Appeal erred in striking the order.
(footnote continued from previous page)
noncompliant home when restrictions were adopted]; Com. v. Baker (Ky. 2009)
295 S.W.3d 437, 443-447 [upholding ex post facto challenge].)
34
CONCLUSION
The judgment of the Court of Appeal is reversed insofar as it modified
defendant‘s conviction by striking the sex offender registration requirement, and is
otherwise affirmed.
BAXTER, J.*
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
GROVER, J.**
* Retired Associate Justice of the Supreme Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
** Associate Justice of the Court of Appeal, Sixth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
35
CONCURRING AND DISSENTING OPINION BY LIU, J.
The jury in this case acquitted defendant Steven Lloyd Mosley of
committing a lewd act on a child under the age of 14 but convicted him of simple
assault. Thereafter the trial judge found that Mosley ―committed the offense as a
result of sexual compulsion or for purposes of sexual gratification‖ and ordered
him to register as a sex offender. (Pen. Code, § 290.006.) The registration order
made Mosley subject to the residency restriction of Penal Code section 3003.5,
subdivision (b), which prohibits any registered sex offender from living within
2,000 feet of a school or park.
Mosley argues that under Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi), he was entitled to have a jury, not a judge, determine the facts
supporting the registration order and residency restriction. In rejecting this claim,
today‘s opinion avoids deciding whether the residency restriction applies to
Mosley — a statutory question — in order to decide not one but two constitutional
questions concerning Apprendi‘s applicability. Because the court‘s methodology
is as flawed as its holdings, I respectfully dissent. Section 3003.5, subdivision (b)
applies to all registered sex offenders, including Mosley, and its imposition here
required a determination of facts that historically lay within the jury‘s domain.
Mosley has stated a valid Apprendi claim because the residency restriction is a
penalty that exceeds what the jury‘s verdict in this case permits.
1
I.
In this appeal, the Attorney General argues that Penal Code section 3003.5,
subdivision (b) (hereafter section 3003.5(b)) applies only to registered sex
offenders who are on parole and not to misdemeanor probationers like Mosley.
(All undesignated statutory references are to the Penal Code.) If the Attorney
General is correct, we need not go further to decide whether the residency
restriction was imposed in violation of Apprendi. So the first question we must
decide is whether section 3003.5(b) applies to sex offenders who are not on parole.
Today‘s opinion avoids this threshold statutory question. Instead, the court
assumes that section 3003.5(b) applies to registered sex offenders not on parole
and proceeds to reject Mosley‘s Apprendi claim. (Maj. opn., ante, at pp. 11–12.)
This approach is highly unorthodox.
―If there is one doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on questions of
constitutionality‖ unless those questions are ―unavoidable.‖ (Spector Motor Co. v.
McLaughlin (1944) 323 U.S. 101, 105; see Bond v. United States (2014) 572 U.S.
__, __ [134 S.Ct. 2077, 2087]; Lyng v. Northwest Indian Cemetery Prot. Assn.
(1988) 485 U.S. 439, 445–446; Escambia County v. McMillan (1984) 466 U.S. 48,
51.) This doctrine promotes judicial restraint and minimizes the potential for
friction between the judiciary and the political branches. (See National
Federation of Independent Business v. Sebelius (2012) 567 U.S. __, __ [132 S.Ct.
2566, 2593].) Like the high court, this court has regularly said that we will ―not
reach constitutional questions unless absolutely required to do so.‖ (People v.
Williams (1976) 16 Cal.3d 663, 667; see Verdin v. Superior Court (2008) 43
Cal.4th 1096, 1102; People v. Brown (2003) 31 Cal.4th 518, 534; Transportation
Authority v. Guardino (1995) 11 Cal.4th 220, 230; In re Michael G. (1988) 44
2
Cal.3d 283, 295; People v. Leonard (1983) 34 Cal.3d 183, 187.) When there is a
―statutory basis‖ for resolving a case, we will not ―render[] a decision on
constitutional grounds.‖ (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court
(1999) 20 Cal.4th 1178, 1190; see College Hospital Inc. v. Superior Court (1994)
8 Cal.4th 704, 720–721; De Lancie v. Superior Court (1982) 31 Cal.3d 865, 877 &
fn. 13; People v. Gilbert (1969) 1 Cal.3d 475, 484–485; Palermo v. Stockton
Theatres (1948) 32 Cal.2d 53, 66.)
Against this mountain of precedent, the court invents a doctrine of statutory
avoidance: It avoids an issue of statutory interpretation in order to resolve the case
on constitutional grounds. But, as the court does not dispute, no such doctrine
appears in the case law or in any treatise on statutory interpretation. (See, e.g.,
2A–3 Sutherland, Statutes and Statutory Construction (7th ed. 2014) §§ 45:1–65:5;
Scalia & Garner, Reading Law: The Interpretation of Legal Texts (2012).) The
recognized canons of construction are so wide-ranging that it has been said ―for
every canon . . . there is an equal and opposite canon.‖ (Posner, Statutory
Interpretation—In the Classroom and in the Courtroom (1983) 50 U. Chi. L.Rev.
800, 806, citing Llewelyn, The Common Law Tradition (1960) pp. 521–535.)
And yet, the canon that a court should avoid a constitutional issue if the case can
be decided on statutory grounds has no complement that says a court should avoid
a statutory issue if the case can be decided on constitutional grounds. Such an
approach has long been rejected. (See Liverpool, N.Y. & P.S.S. Co. v. Emigration
Comrs. (1885) 113 U.S. 33, 39.)
Today‘s decision says we need not decide the statutory question ―in
advance of any concrete evidence of prosecutors‘ intent to press charges against
nonparolee sex offender registrants for noncompliance with the residency
restrictions.‖ (Maj. opn., ante, at p. 11.) In essence, the court says the statutory
3
issue is not ripe for decision, even as it insists that the constitutional issue arising
from a hypothetical reading of the statute is ripe. (Maj. opn., ante, at p. 12, fn. 7.)
But the Attorney General acknowledged at oral argument that she knew of at least
one case in which a probationer has been charged with violating the statute. And
in any event, the statutory question is squarely presented by Mosley‘s claim that
section 3003.5(b) on its face imposes punishment on all registered sex offenders.
That claim — unlike the ―constitutional challenges to section 3003.5(b) as a
parole condition‖ in In re E.J. (2010) 47 Cal.4th 1258 (maj. opn., ante, at p. 11,
fn. 7, italics added) — requires us to decide whether the statute applies to
registrants who are not on parole. The answer to that question does not turn on
whether prosecutors intend to apply the statute to any particular person or group.
Had the court properly engaged the statutory question, it would have found
a clear answer in the text of section 3003.5(b): ―Notwithstanding any other
provision of law, it is unlawful for any person for whom registration is required
pursuant to Section 290 to reside within 2000 feet of any public or private school,
or park where children regularly gather.‖ (Italics added.) The term ―any person
for whom registration is required‖ is unqualified and thus includes registered sex
offenders who are not on parole.
The Attorney General contends that a literal reading of section 3003.5(b)
would undermine the statute‘s purpose of protecting the public and would clash
with other provisions of section 3003.5. According to her briefing, reading section
3003.5(b) to apply to any registered sex offender, not just parolees, would increase
the rate of transience among sex offenders. This would make monitoring and
rehabilitation more difficult, thus inhibiting efforts to solve crimes and reduce
recidivism. Moreover, the Attorney General notes that section 3003.5 appears in a
chapter of the Penal Code dealing with parole conditions and that the only
4
provision of section 3003.5 that existed before Proposition 83 took effect was
subdivision (a), which prohibits a sex offender registrant ―released on parole‖
from living with another registrant in a ―single family dwelling.‖ If the voters
truly intended section 3003.5(b) to apply to ―any person for whom registration is
required,‖ she argues, it is not clear why they put it in section 3003.5 rather than
section 290, which sets forth sex offender registration requirements.
But there is no inconsistency in section 3003.5 between subdivision (a),
which sets forth a residency restriction as a parole condition, and subdivision (b),
which sets forth a different residency restriction that applies to parolees and
nonparolees alike. Moreover, whether or not applying a residency restriction to all
registered sex offenders is an effective way to promote public safety, the voters
evidently believed it would be.
To the extent there is any ambiguity in the statute, we may look ―to
extrinsic sources such as ballot summaries and arguments for insight into the
voters‘ intent.‖ (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321.)
Nothing in the ballot materials on Jessica‘s Law suggests that the voters intended
to limit section 3003.5(b) to parolees. The official summary of the measure says
Proposition 83 ―[p]rohibits registered sex offenders from residing within 2,000
feet of any school or park.‖ (Voter Information Guide, Gen. Elec. (Nov. 7, 2006)
official title and summary of Prop. 83, p. 42, italics added.) Similarly, the
Legislative Analyst explained that the measure ―bars any person required to
register as a sex offender from living within 2,000 feet (about two-fifths of a mile)
of any school or park‖ and that ―[a] violation of this provision would be a
misdemeanor offense, as well as a parole violation for parolees.‖ (Id., analysis of
Prop. 83 by Legis. Analyst, p. 44, italics added.) These statements suggest that
5
section 3003.5(b) applies to any registered sex offender, including those not on
parole — just as the statute says.
II.
Having determined that section 3003.5(b) applies to Mosley, I now turn to
his Apprendi claim. Today‘s decision holds that ―the effect of Apprendi on the
residency restrictions of Jessica‘s Law is obviated by a post-Apprendi decision,
Oregon v. Ice (2009) 555 U.S. 160 (Ice).‖ (Maj. opn., ante, at p. 4.) But the court
misreads the Apprendi line of cases, including Ice.
Apprendi held that ―[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.‖ (Apprendi, supra,
530 U.S. at p. 490.) The high court reached this holding in the context of a New
Jersey hate crime statute that prescribed longer sentences if a judge found by a
―preponderance of the evidence‖ that the defendant committed an offense ― ‗with a
purpose to intimidate an individual or group of individuals because of race, color,
gender, handicap, religion, sexual orientation or ethnicity.‘ ‖ (Id. at pp. 468–469.)
Allowing the imposition of this enhanced penalty based on judicial factfinding
violated the defendant‘s right to a jury trial under the Sixth Amendment to the
United States Constitution. (Id. at pp. 490–492.)
Subsequently, the high court in Ice held that, while a jury must determine
the ―facts that warrant punishment for a specific statutory offense,‖ a judge may
determine the facts that warrant consecutive rather than concurrent sentences for
multiple offenses. (Ice, supra, 555 U.S. at p. 170.) Ice explained that Apprendi‘s
―animating principle is the preservation of the jury‘s historic role as a bulwark
between the State and the accused at the trial for an alleged offense. [Citation.]
Guided by that principle, our opinions make clear that the Sixth Amendment does
6
not countenance legislative encroachment on the jury‘s traditional domain.
[Citation.] We accordingly considered whether the finding of a particular fact was
understood as within ‗the domain of the jury . . . by those who framed the Bill of
Rights.‘ [Citation.]‖ (Ice, supra, 555 U.S. at p. 168.)
Applying this inquiry in Ice, the high court said ―[t]he historical record
demonstrates that the jury played no role in the decision to impose sentences
consecutively or concurrently. Rather the choice rested exclusively with the
judge. [Citations.]‖ (Ice, supra, 555 U.S. at p. 168.) ―In light of this history,
legislative reforms regarding the imposition of multiple sentences do not implicate
the core concerns that prompted our decision in Apprendi. There is no
encroachment here by the judge upon facts historically found by the jury, nor any
threat to the jury‘s domain as a bulwark at trial between the State and the
accused.‖ (Id. at p. 169.)
Today‘s opinion says that ―[h]ere, as in Ice, there is no jury tradition
connected to the sentencing decision at issue.‖ (Maj. opn., ante, at p. 20.)
―Instead, both residency restrictions and underlying sex offender registration
requirements are modern regulatory sentencing imperatives unknown at common
law. . . . They are additional examples of ‗sentencing choices or accoutrements‘
([Ice, supra, 555 U.S.] at p. 172) in which juries have played no historical role,
and which do not implicate the Sixth Amendment jury trial guarantee within the
meaning of Apprendi.‖ (Id. at p. 19.) This is unpersuasive for several reasons.
As an initial matter, the high court in Ice observed that all of its prior
decisions applying Apprendi‘s rule ―involved sentencing for a discrete crime,
not—as [in Ice]—for multiple offenses different in character or committed at
different times.‖ (Ice, supra, 555 U.S. at p. 167.) Whereas ―the determination of
facts that warrant punishment for a specific statutory offense‖ fell within the jury‘s
7
traditional role (id. at p. 170), ―administering multiple sentences‖ on multiple
offenses did not (id. at p. 168). The case before us involves sentencing for a
specific statutory offense, not multiple offenses.
More fundamentally, today‘s decision misreads Ice when it reasons that,
like the administration of multiple sentences, ―sex offender registration and
residency requirements are not sentencing matters in which, historically, the jury
has played any traditional role at common law.‖ (Maj. opn., ante, at pp. 18–19.)
In saying that ―the scope of the constitutional jury right must be informed by the
historical role of the jury at common law‖ (Ice, supra, 555 U.S. at p. 170), Ice did
not suggest that the scope of the Sixth Amendment turns on whether common law
juries imposed particular sentences. Rather, Ice made clear that the historical
inquiry focuses on ―whether the finding of a particular fact was understood as
within ‗the domain of the jury.‘ ‖ (Ice, at p. 168, italics added; see id. at p. 170
[―Apprendi‘s core concern‖ is ―a legislative attempt to ‗remove from the [province
of the] jury‘ the determination of facts that warrant punishment for a specific
statutory offense.‖ (italics added)].) The fact that juries historically did not make a
particular sentencing decision was evidence that a defendant had no entitlement to
have a jury make the factual determinations underlying the sentencing decision.
In Ice, the fact that ―the jury played no role in the decision to impose sentences
consecutively or concurrently‖ meant that a judge could find the facts required to
impose consecutive sentences without ―encroach[ing] . . . upon facts historically
found by the jury.‖ (Id. at pp. 168, 169, italics added.)
In Southern Union Co. v. United States (2012) 567 U.S. __ [132 S.Ct.
2344] (Southern Union), the high court reaffirmed that the salient historical
inquiry is whether the determination of facts authorizing a particular sentence lay
within the jury‘s domain. Southern Union involved a federal statute pegging
8
criminal fines to the duration of the violation. The question was ―whether
[Apprendi‘s] rule applies to sentences of criminal fines.‖ (Id. at p. __ [132 S.Ct. at
pp. 2348–2349].) The high court held that although some fines are not substantial
enough to trigger the protections of the Sixth Amendment, ―[w]here a fine is
substantial enough . . . , Apprendi applies in full.‖ (Southern Union, at p. __ [132
S.Ct. at p. 2352].) In so holding, the high court reiterated that ―Apprendi‘s ‗core
concern‘ is to reserve to the jury ‗the determination of facts that warrant
punishment for a specific statutory offense.‘ Ice, 555 U.S., at 170.‖ (Id. at p. __
[132 S.Ct. at p. 2350].) Southern Union further explained: ―In stating Apprendi‘s
rule, we have never distinguished one form of punishment from another. Instead,
our decisions broadly prohibit judicial factfinding that increases maximum
criminal ‗sentence[s],‘ ‗penalties,‘ or ‗punishment[s]‘—terms that each undeniably
embrace fines. [Citations.]‖ (Id. at p. __ [132 S.Ct. at p. 2351].)
The high court acknowledged that ―judges in the colonies and during the
founding era ‗possessed a great deal of discretion‘ in determining whether to
impose a fine and in what amount.‖ (Southern Union, supra, 567 U.S. at p. __
[132 S.Ct. at p. 2353].) But the fact that historically ―[t]he judge, not the jury,
would normally determine fine-related sentencing facts‖ (id. at p. __ [132 S.Ct. at
p. 2369 (dis. opn. of Breyer, J.)) was not sufficient to make Apprendi inapplicable
to criminal fines. Instead, the high court said ―the salient question here is what
role the jury played in prosecutions for offenses that did peg the amount of a fine
to the determination of specified facts—often, the value of damaged or stolen
property.‖ (Id. at p. __ [132 S.Ct. at p. 2353].) On this question, the court
concluded that ―juries routinely found facts that set the maximum amounts of
fines‖ (id. at p. __ [132 S.Ct. at p. 2356]), citing several historical examples (id. at
pp. __–__ [132 S.Ct. at pp. 2353–2354]). Although none of the examples
9
concerned the jury‘s role in determining the duration of a criminal violation, the
court did not hesitate to conclude that the Sixth Amendment requires such a
factual determination to be made by a jury.
Thus, the applicability of Apprendi‘s rule does not depend on
―distinguish[ing] one form of punishment from another‖ (Southern Union, supra,
567 U.S. at p. __ [132 S.Ct. at p. 2351]), nor does it require historical proof that
juries as opposed to judges generally imposed a particular punishment or that
juries ever made the exact same factual finding as the one at issue. Moreover, it
does not matter that a particular sentencing decision was ―unknown at common
law‖ (maj. opn., ante, at p. 19), for the same could be said of the hate crime
sentencing enhancement in Apprendi itself. (See Apprendi, supra, 530 U.S. at
p. 478 [―Any possible distinction between an ‗element‘ of a felony offense and a
‗sentencing factor‘ was unknown to the practice of criminal indictment, trial by
jury, and judgment by court as it existed during the years surrounding our Nation‘s
founding.‖].) The Sixth Amendment right to a jury trial cannot be rendered
inapplicable simply by legislative development of ―modern‖ punishments (maj.
opn., ante, at p. 19) or by ―the novelty of a legislative [sentencing] scheme‖
(Apprendi, at p. 482). While acknowledging that ―trial practices [may] change in
the course of centuries,‖ Apprendi made clear that ―practice must at least adhere to
the basic principles undergirding the requirements of trying to a jury all facts
necessary to constitute a statutory offense, and proving those facts beyond
reasonable doubt.‖ (Id. at pp. 483–484.)
Nor does it help to call sex offender registration and residency requirements
― ‗sentencing . . . accoutrements‘ ‖ akin to ― ‗supervised release following service
of a prison sentence‘ ‖ or ― ‗required attendance at drug rehabilitation programs or
terms of community service.‘ ‖ (Maj. opn., ante, at p. 19, quoting Ice, supra, 555
10
U.S. at p. 171.) The high court in Southern Union suggested that this language
from Ice was dicta and ―more likely refers to the routine practice of judges‘
imposing [sentencing options] from within a range authorized by jury-found facts‖
— a practice that ―poses no problem under Apprendi because the penalty does not
exceed what the jury‘s verdict permits.‖ (Southern Union, supra, 567 U.S. at
p. __, fn. 5 [132 S.Ct. at p. 2352, fn. 5].) The essential inquiry in Apprendi, as in
Southern Union, was whether the ―legislative scheme . . . removes the jury from
the determination of a fact that, if found, exposes the criminal defendant to a
penalty exceeding the maximum he would receive if punished according to the
facts reflected in the jury verdict alone.‖ (Apprendi, supra, 530 U.S. at pp. 482–
483; see Southern Union, at pp. __–__ [132 S.Ct. at pp. 2350–2351].)
The case before us is squarely analogous to Apprendi in a crucial respect:
Imposition of the sex offender registration requirement and residency restriction,
like the hate crime sentence enhancement in Apprendi, turns on a finding of the
defendant‘s motive or intent. (See Apprendi, supra, 530 U.S. at p. 494 [―it does
not matter whether the required finding is characterized as one of intent or of
motive‖].) Section 290.006 authorizes a court to require registration ―if the court
finds at the time of conviction or sentencing that the person committed the offense
as a result of sexual compulsion or for purposes of sexual gratification.‖ (Italics
added.) ―By its very terms, this statute mandates an examination of the
defendant‘s state of mind—a concept known well to the criminal law as the
defendant‘s mens rea.‖ (Apprendi, at p. 492.) The key historical question —
―whether the finding of a particular fact was understood as within ‗the domain of
the jury . . . by those who framed the Bill of Rights‘ ‖ (Ice, supra, 555 U.S. at
p. 168) — has an easy answer in this case. (Whether ―the defendant‘s likelihood
of reoffense‖ must also be found by a jury (maj. opn., ante, at p. 21) is not before
11
us today, and we have never decided whether such a finding is necessary to expose
a defendant to discretionary registration under section 290.006.)
In sum, the circumstances here directly implicate Apprendi‘s rule. The jury
acquitted Mosley of committing a lewd act on a child under the age of 14 — an
offense requiring proof of sexual intent (§ 288, subd. (a)) — and instead convicted
him of simple assault (§ 240). A simple assault conviction, by itself, does not
result in any registration requirement or residency restriction. The ―effect‖ of the
judge‘s finding under section 290.006 was to ―expose the defendant to a greater
punishment than that authorized by the jury‘s guilty verdict.‖ (Apprendi, supra,
530 U.S. at p. 494.) At least that is so if, as Mosley contends, section 3003.5(b)‘s
residency restriction constitutes punishment under the Sixth Amendment.
III.
Turning to this last question, I agree with the Court of Appeal that the
residency restriction is punitive based on the factors set forth in Kennedy v.
Mendoza-Martinez (1963) 372 U.S. 144, 168–169 (Mendoza-Martinez). Applying
those factors, the high court in Smith v. Doe (2003) 538 U.S. 84, 97–106 (Smith)
held that Alaska‘s sex offender registration scheme was not punitive for purposes
of the ex post facto clause, and this court has reached the same conclusion about
California‘s sex offender registration requirements for purposes of the Sixth
Amendment (People v. Picklesimer (2010) 48 Cal.4th 330, 343–344
(Picklesimer)). But section 3003.5(b)‘s residency restriction goes beyond
registration requirements and imposes more severe burdens that drive the analysis
toward a different result.
In first determining the voters‘ intent behind section 3003.5(b), today‘s
opinion acknowledges that Proposition 83 ―did not specifically state why the
voters adopted the residency restrictions in particular‖ and that Proposition 83‘s
12
official title and findings ―suggest that, overall, the electorate had a mix of
punitive, deterrent, and protective motives.‖ (Maj. opn., ante, at p. 25.)
Nevertheless, the court puts decisive weight on the ballot arguments of Proposition
83‘s supporters, while dismissing the fact that Proposition 83 placed the residency
restriction in the Penal Code and made its violation a criminal offense. (Maj. opn.,
ante, at pp. 25–26; cf. Smith, supra, 538 U.S. at p. 94 [―formal attributes of a
legislative enactment, such as the manner of its codification or the enforcement
procedures it establishes, are probative of the legislature‘s intent‖ though ―not
dispositive‖].)
On balance, I believe the voters primarily intended section 3003.5(b) as a
regulatory measure. But this nonpunitive intent is not stated as clearly or as
conclusively as when a legislature ―expresse[s] the objective of the law in the
statutory text itself.‖ (Smith, supra, 538 U.S. at p. 93.) As a result, the Court of
Appeal was right to question whether the ― ‗ ―clearest proof‖ ‘ ‖ of punitive effect
is necessary to outweigh the voters‘ apparent intent. (Id. at p. 92; see id. at p. 110
(conc. opn. of Souter, J.); id. at pp. 114–115 (dis. opn. of Ginsburg, J.).)
Ultimately, however, we need not resolve the appropriate standard because even if
the clearest proof is required, the Mendoza-Martinez factors decisively show that
section 3003.5(b) is punitive in effect.
Here, as in Smith, ―[t]he factors most relevant to our analysis are whether,
in its necessary operation, the regulatory scheme: has been regarded in our history
and traditions as a punishment; imposes an affirmative disability or restraint;
promotes the traditional aims of punishment; has a rational connection to a
nonpunitive purpose; or is excessive with respect to this purpose.‖ (Smith, supra,
538 U.S. at p. 97.) These factors are ― ‗neither exhaustive nor dispositive,‘ ‖ but
are ― ‗useful guideposts.‘ ‖ (Ibid., citations omitted.) In applying these factors,
13
we must evaluate the effects of section 3003.5(b) in light of its applicability to all
registered sex offenders, not just offenders like Mosley whose victims were
children. (See Mendoza-Martinez, supra, 372 U.S. at p. 169 [―these factors must
be considered in relation to the statute on its face‖].)
In assessing whether a residency restriction ―has been regarded in our
history and traditions as a punishment‖ (Smith, supra, 538 U.S. at p. 97), the Court
of Appeal said it ―is sufficiently close to banishment, property deprivation, and a
probation condition to be deemed traditional punishment.‖ These semblances are
discernible but inexact. Unlike banishment, which directly forbids offenders from
―return[ing] to their original community‖ (Smith, at p. 98), section 3003.5(b)
declares certain areas off-limits for establishing a home but not for any other
purpose. Unlike ―the punitive confiscation of property,‖ which traditionally
involves a fine or seizure of land specifically intended to burden the defendant‘s
property interests (e.g., Nixon v. Administrator of General Services (1977) 433
U.S. 425, 474 & fn. 38), the deprivation of property interests worked by section
3003.5(b) seems incidental to the statute‘s main purpose of restricting liberty.
And unlike probation or parole, which involves conditional release and ongoing
supervision (see Smith, at p. 101), section 3003.5(b) establishes an independent
legal obligation without individualized supervision or constructive custody.
Comparing the residency restriction to traditional forms of punishment does not
strongly suggest it is punitive.
By contrast, section 3003.5(b) clearly ―imposes an affirmative disability or
restraint‖ that suggests its punitive character. (Smith, supra, 538 U.S. at p. 97.)
―Here, we inquire how the effects of the [statute] are felt by those subject to it.‖
(Id. at pp. 99–100.) Unlike a registration requirement, which ―imposes no
physical restraint‖ and ―leaves [sex offenders] free to change . . . residences‖ (id.
14
at p. 100), the residency restriction directly limits where sex offenders may live
and establish a home. In addition, whereas the registration scheme in Smith
disclosed and disseminated information that was ―already a matter of public
record‖ (id. at p. 101), section 3003.5(b) imposes on sex offenders a burden that is
separate from and additional to all other requirements with which they must
comply.
Moreover, section 3003.5(b) predictably results in severe geographic
limitations on compliant housing in densely populated areas, as our decision today
in People v. Taylor (Mar. 2, 2015, S206143) __ Cal.4th __ (Taylor) confirms.
(See id., at p. __ [at p. 24] [section 3003.5(b) ―effectively barred petitioners access
to approximately 97 percent of the multifamily rental housing units in San Diego
County that would otherwise be available to them‖]; see also Cal. Sex Offender
Management Bd., Homelessness Among Cal. Registered Sex Offenders: An
Update (Sept. 2011) p. 7 (hereafter 2011 Update) [―A number of metropolitan
areas have developed maps showing the areas where, according to the language of
Prop. 83, affected sex offenders may not live. Observers agree that the vast
majority of potential housing locations in urban areas are now included in the off-
limits territory. San Francisco, for example, has virtually no realistic places where
a paroled sex offender may legally live.‖].)
The breadth of the restriction has ―led to dramatically escalating levels of
homelessness among sex offenders.‖ (2011 Update, supra, at p. 1; see id. at p. 7
[sex offenders registered as transient nearly tripled from 2,050 in 2007 (just after
Jessica‘s Law was passed) to 6,012 in 2011]; Taylor, supra, __ Cal.4th at p. __ [at
pp. 25–26].) For many sex offenders, the residency restriction also adversely
affects access to transportation, employment opportunities, health care, drug and
alcohol rehabilitation programs, and other social services. (See Taylor, at p. __ [at
15
pp. 24–25].) And even among those who are able to obtain compliant housing and
access to needed services, a restriction on where one may choose to establish a
home can itself work a significant deprivation. (See Kelo v. City of New London
(2005) 545 U.S. 469, 494–495 (dis. opn. of O‘Connor, J.); City of Cleburne v.
Cleburne Living Center (1985) 473 U.S. 432, 473 (Cleburne) (conc. & dis. opn. of
Marshall, J.).) Unlike similar laws in other states, section 3003.5(b) contains no
provision allowing a sex offender to stay in a home that he or she owned before
the law‘s enactment, before the sex offense conviction, or before a newly located
school or park is established in the area. (Cf., e.g., Iowa Code tit. XVI,
§ 692A.114, subd. 3.c., d.); 720 Ill. Comp. Stat. ch. 720, § 5/11–9.3(b-5); Okla.
Stat. tit. 57, § 590, subd. (A).)
Today‘s opinion acknowledges the realities described in Taylor, which
addressed an as-applied challenge, but disclaims any awareness of how section
3003.5(b) generally affects sex offenders throughout the state. (Maj. opn., ante, at
p. 30, fn. 15.) The court says the terms of the residency restriction are ―potentially
burdensome‖ but ―limited‖ because they ―do not regulate a registered sex
offender‘s daily activities‖ and ―do not dictate where he or she may travel, visit,
shop, eat, work, or play.‖ (Id. at pp. 27–28.) This blinks reality and common
sense.
If the only real effect of the residency restriction were to control where sex
offenders may sleep at night, leaving them free to spend their waking hours near
parks and schools, then Jessica‘s Law would have been an idle enactment.
Clearly, the desired and anticipated effect of the law was to keep sex offenders
away from neighborhoods where children play or attend school — not just at
night, but at all times. (See Voter Information Guide., Gen Elec. (Nov. 7, 2006),
argument in favor of Prop. 83, p. 46 [Prop. 83 will ―keep[] [child molesters] away
16
from schools and parks‖ and will ―[c]reate predator free zones around schools and
parks‖ (capitalization and italics omitted)].) By prohibiting sex offenders from
living near schools or parks, section 3003.5(b) has the effect of eroding or
severing their ties to the community and ordinary civic life. (See Pleasant Grove
City v. Summum (2009) 555 U.S. 460, 469 [parks are traditional public forums
― ‗used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions‘ ‖]; Cleburne, supra, 473 U.S. at p. 461, fn. 5 (conc. &
dis. opn. of Marshall, J.) [group home for mentally retarded persons ―was
specifically located near a park, a school, and a shopping center so that its
residents would have full access to the community at large‖]; Evans v. Newton
(1966) 382 U.S. 296, 301–302 [a park is a ―public facility‖ that ―serves the
community‖ and can play ―an integral part‖ of a city‘s activities]; Ed. Code,
§ 38131, subd. (a) [each school is ―a civic center‖]; Presidential Com. on Election
Admin., The American Voting Experience: Rep. and Recommendation of the
Presidential Commission on Election Administration (Jan. 2014) p. 33 [―schools
[are] the preferred venue for polling places‖].) To say that section 3003.5(b)
―do[es] not regulate a registered sex offender‘s daily activities‖ (maj. opn., ante, at
p. 28) provides no realistic appraisal of ―how the effects of the [statute] are felt by
those subject to it.‖ (Smith, supra, 538 U.S. at pp. 99–100.) The effect, even if
not the intent, of the residency restriction is to ostracize sex offenders as ―pariahs
who do not belong in the community.‖ (Cleburne, at p. 473 (conc. & dis. opn. of
Marshall, J.).)
The nature and severity of these burdens inform whether section 3003.5(b)
―promote[s] the traditional aims of punishment—retribution and deterrence.‖
(Mendoza-Martinez, supra, 372 U.S. at p. 168.) Although ―[a]ny number of
governmental programs might deter crime without imposing punishment‖ (Smith,
17
supra, 538 U.S. at p. 102), the residency restriction hardly qualifies as ordinary
government regulation. As noted, whereas the registration requirement in Smith
publicized ―information about the individual‘s conviction [that] was already in the
public domain‖ (id. at p. 100), the residency restriction imposes greater and
qualitatively different burdens than a registration requirement. To the extent that
potential offenders weigh the costs and benefits of criminal conduct, the lifetime
disabilities resulting from the residency restriction substantially increase the costs
of sexual offenses and thereby promote deterrence. Moreover, it is significant that
section 3003.5(b) ―makes no individualized determination of the dangerousness of
a particular registrant. . . . When a restriction is imposed equally upon all
offenders, with no consideration given to how dangerous any particular registrant
may be to public safety, that restriction begins to look far more like retribution for
past offenses than a regulation intended to prevent future ones.‖ (Commonwealth
v. Baker (Ky. 2009) 295 S.W.3d 437, 444 (Baker) [finding similar residency
restriction (Ky. Rev. Stat. tit. III § 17.545) to be punitive for purposes of ex post
facto analysis].)
The remaining factors are whether section 3003.5(b) ―has a rational
connection to a nonpunitive purpose‖ and whether it ―is excessive with respect to
this purpose.‖ (Smith, supra, 538 U.S. at p. 97.) Today‘s opinion effectively
collapses these two factors into one: It finds the residency restriction rationally
connected to protecting children around schools and parks, and it then finds no
excessiveness by analogizing the inquiry to ordinary rational basis review. (Maj.
opn., ante, at p. 32 [―The electorate could reasonably conclude . . . .‖]; id. at p. 33,
fn. 16, citing FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 314.) But
the inquiry here focuses on the effects of the statute, not whether there is some
― ‗conceivable basis which might support it.‘ ‖ (Beach Communications, at
18
p. 315.) In stating that ―[t]he question is whether the means chosen are reasonable
in light of the nonpunitive objective‖ (Smith, at p. 105), Smith drew no analogy
between the excessiveness inquiry and rational basis review. Instead, the high
court evaluated reasonableness in this context by reference to the statute‘s actual
workings and empirical underpinnings. (Id. at pp. 103–105.)
Although section 3003.5(b)‘s nonpunitive purpose of protecting children is
not a sham or pretext for imposing punishment, the residency restriction is plainly
excessive with respect to that purpose. The most conspicuous feature of section
3003.5(b) in this regard is its categorical applicability to all registered sex
offenders — regardless of whether the offender ever targeted children, regardless
of whether the offense was violent or nonviolent, regardless of risk profile.
Section 3003.5(b) differs from analogous residency restrictions that limit their
applicability to sex offenders whose crimes involved children. (See, e.g., Del.
Code tit. 11, § 1112, subds. (a), (b)(4); Fla. Stat. tit. XLVI, § 775.215,
subds. (2)(a), (3)(a); Ind. Code tit. 35, § 35-42-4-11, subd. (a); Iowa
Code tit. XVI, § 692A.114, subd. 1.c.; S.C. Code tit. 23, § 23-3-535, subd. (B).)
And it differs from analogous restrictions that limit their applicability to sex
offenders who have committed a certain level of aggravated offense or who have
been assessed as meeting a certain threshold of dangerousness. (See, e.g., Ark.
Code tit. 5, § 5-14-128, subd. (a); Neb. Rev. Stat. ch. 29 §§ 29-4016, subds. (4),
(5), 29-4017, subd. (1).)
The indiscriminate character of section 3003.5(b) also stands in contrast to
the differentiated approach set forth in the community notification provisions of
California‘s sex offender registration statute. Under section 290.46, the state
Department of Justice must maintain a public website that provides information
about registered sex offenders. This website contains a wealth of information
19
about individuals convicted of the most serious sex crimes, including their names,
photographs, and addresses. (§ 290.46, subd. (b).) However, the website displays
less information about individuals who pose a lower risk to the community. For
example, it provides the ZIP codes but not the addresses of some offenders.
(§ 290.46, subds. (c), (d)). And the lowest risk offenders may file an application
to have all of their information removed from the website. (§ 290.46, subd. (e).)
These provisions are designed to protect communities from dangerous individuals
without intruding more than necessary on the privacy rights of low risk offenders.
Section 3003.5(b), by contrast, imposes the same onerous restraint on all sex
offenders, even those who pose such a low risk of recidivism that their information
is excluded from online community notification.
In Smith, the high court reasoned that because sex offender registration
imposes a relatively ―minor‖ burden, ―the State can dispense with individual
predictions of future dangerousness‖ without casting into doubt the nonpunitive
character of the regulatory scheme. (Smith, supra, 538 U.S. at p. 104.) By
contrast, when a statute imposes a severe restraint such as involuntary
commitment, ―[t]he magnitude of the restraint ma[kes] individual assessment
appropriate.‖ (Ibid.) Though less onerous than involuntary commitment, section
3003.5(b)‘s residency restriction is more onerous than registration. It is
sufficiently onerous that ―a lack of individual assessment,‖ which attenuates the
nexus to a regulatory purpose, ―render[s] the statute punitive.‖ (Baker, supra, 295
S.W.3d at p. 446.)
The excessiveness of the residency restriction in relation to its nonpunitive
purpose is reinforced by findings of the California Sex Offender Management
Board (Board). Created in 2005 by bipartisan legislation (Stats. 2006, ch. 338),
the Board is the state entity within the Department of Corrections and
20
Rehabilitation charged with ―address[ing] any issues, concerns, and problems
related to the community management of adult sex offenders.‖ (§ 9002, subd. (a);
see ibid. [―The main objective of the board . . . is to achieve safer communities by
reducing victimization.‖].) In a 2011 report, the Board concluded: ―Based on all
that is known about sex offender recidivism and about the nature of most sex
offenses involving children, there is no evidence that residence restrictions are
related to preventing or deterring sex crimes against children. To the contrary, the
evidence strongly suggests that residence restrictions are likely to have the
unintended effect of increasing the likelihood of sexual re-offense.‖ (2011
Update, supra, at p. 1.) According to the Board, residency restrictions like section
3003.5(b) are ineffective because most sex crimes against children are perpetrated
not by strangers lurking near schools or parks, but by family members or
acquaintances who victimize children inside their homes or other private settings.
(2011 Update, at pp. 9–13.) At the same time, by limiting sex offenders‘ access to
housing and, in turn, employment, health care, transportation, and rehabilitative
services, residency restrictions often result in ―an unstable lifestyle‖ that
―represents a major risk factor for re-offending.‖ (Id. at p. 14.) These general
findings, like the recidivism data cited in Smith and in today‘s opinion, properly
inform whether the statute is punitive in effect. (See maj. opn., ante, at p. 32,
quoting Smith, supra, 538 U.S. at p. 103 [relying on secondary sources]; Smith, at
p. 104 [same]; but cf. maj. opn., ante, at p. 24, fn. 12 [criticizing my reliance on
secondary sources].)
To be sure, ―[t]he excessiveness inquiry . . . is not an exercise in
determining whether the legislature has made the best choice possible to address
the problem it seeks to remedy.‖ (Smith, supra, 538 U.S. at p. 105.) Even so,
section 3003.5(b) is sweeping and indiscriminate ―in its necessary operation‖
21
(Smith, at p. 97) and imposes significant disabilities and restraints that scarcely
further the statute‘s protective purpose, if at all. Section 3003.5(b)‘s residency
restriction, though regulatory in intent, is punitive in effect.
This conclusion, in the context of an Apprendi claim, does not mean the
residency restriction cannot validly be imposed on persons who are subject to
registration under section 290.006. But it does mean the facts authorizing
imposition of the restriction must be proven to a jury beyond a reasonable doubt.
In this case, the residency restriction is ―a penalty exceeding the maximum
[Mosley] would receive if punished according to the facts reflected in the jury
verdict alone.‖ (Apprendi, supra, 530 U.S. at p. 483.) Accordingly, I respectfully
dissent from today‘s decision upholding the imposition of the residency restriction
on Mosley.
Because the residency restriction is separable from section 290‘s
registration requirements, and because our precedent holds that the registration
requirements are not punitive (Picklesimer, supra, 48 Cal.4th at pp. 343–344), I
agree that ―the judge-imposed registration order remains separately valid and
extant.‖ (Maj. opn., ante, at p. 34.) I thus join the court in reversing the Court of
Appeal‘s judgment to the extent it relieved Mosley of the requirement that he
register as a sex offender.
LIU, J.
I CONCUR:
WERDEGAR, J.
22
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Mosley
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 188 Cal.App.4th 1090
Rehearing Granted
__________________________________________________________________________________
Opinion No. S187965
Date Filed: March 2, 2015
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: David A. Hoffer
__________________________________________________________________________________
Counsel:
Allison H. Ting and George L. Schraer, under appointments by the Supreme Court, for Defendant and
Appellant.
Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon for California Public Defenders
Association as Amicus Curiae on behalf of Defendant and Appellant.
Richard Such for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and
Appellant.
Christina Allbright for California Coalition on Sexual Offending and The Association for the Treatment of
Sexual Abusers as Amici Curiae on behalf of Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons and Michael P. Farrell, Assistant Attorneys General, Donald E. de
Nichola, Deputy State Solicitor General, Peter Quon, Jr., Lilia E. Garcia, Angela M. Borzachillo, Catherine
Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
George L. Schraer
5173 Waring Road, #247
San Diego, CA 92120
(619) 582-6047
Janet E. Neeley
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5257
2