Concurring. — Before the court today are four petitioners who were convicted of a sexual offense before passage of Proposition 83 (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006)), who were required by law to register as sex offenders as a result and who have been paroled from prison after passage of Proposition 83. All four petitioners challenge the attempt by the California Department of Corrections and Rehabilitation (CDCR) to enforce against them, as a statutory parole condition, Penal Code section 3003.5, subdivision (b) (hereafter section 3003.5(b)), which was enacted as part of Proposition 83. That new law prohibits sex offender registrants from living “within 2000 feet of any public or private school, or park where children regularly gather.” (§ 3003.5(b).) The majority concludes that enforcing this 2,000-foot residency restriction against petitioners as a parole condition does not constitute an impermissible retroactive application of the law nor violate their right to be free of an ex post facto application of the law. The majority remands the balance of petitioners’ constitutional claims to the lower courts to permit petitioners to pursue their “as applied” challenges to enforcement of the new residency restrictions against them.
I concur in the majority’s result, but not necessarily its reasoning. Specifically, I agree that for these four petitioners, all of whom were convicted of *1285qualifying sex offenses before passage of Proposition 83 and who were paroled from prison after such passage, enforcing the 2,000-foot residency restriction as a condition of their parole involves no impermissible retroactive or ex post facto application of the law. Under the plain meaning of section 3003.5(b), the critical date is not the date of one’s conviction for a qualifying sex crime, nor (contrary to the majority) the date of one’s parole from prison. The critical date is instead the date one is found living in noncompliant housing.1 As the CDCR proposes to enforce section 3003.5(b) as a parole condition against all four petitioners for their living conditions now — that is, after passage of Proposition 83 — I agree with the majority’s conclusion that such action by the CDCR does not violate any rights petitioners may possess.
But I emphasize the narrowness of both the issue before the court and my agreement with the majority. As the majority recognizes, the Legislative Analyst’s description of Proposition 83 and section 3003.5(b) in the official Voter Information Guide stated; “A violation of this provision would be a misdemeanor offense, as well as a parole violation for parolees.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis of Prop. 83 by Legis. Analyst, p. 44, italics added.) As no petitioner presently before the court is threatened with a misdemeanor prosecution, we address in this case the meaning of section 3003.5(b) only as it relates to a condition of parole, and not whether it is also a misdemeanor crime.
Moreover, now before the court are four parolees who were paroled after passage of Proposition 83. We thus also have no occasion here to address whether the 2,000-foot residency limit might apply to those who completed their paroles before the effective date of Proposition 83 (see, e.g., Doe v. Schwarzenegger (E.D.Cal. 2007) 476 F.Supp.2d 1178, 1180 [“John Doe 11”]); to those whose parole period began before, but is scheduled to terminate after, that date (id. at pp. 1179-1180 [“John Doe I”]); or even to the thousands of persons subject to sex offender registration who, for whatever reason, are not currently on parole.
Finally, like the majority, I express no opinion on petitioners’ various other constitutional challenges to section 3003.5(b) and agree that we must remand these cases to the lower courts to permit the parties to litigate the factual issues necessary to the proper resolution of their respective cases.
With those caveats, I concur in the result reached by the majority.
Section 3003.5(b) provides: “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.”