DocketNumber： No. S156933; No. S157631; No. S157633; No. S157634
Citation Numbers： 47 Cal. 4th 1258
Judges： Baxter, Moreno, Werdegar
Filed Date： 2/1/2010
Status： Precedential
Modified Date： 10/19/2024
Opinion
On November 7, 2006, the voters enacted 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). Proposition 83 was a wide-ranging initiative intended to “help Californians better protect themselves, their children, and their communities” (id., § 2, subd. (f)) from problems posed by sex offenders by “strengthening] and improving] the laws that punish and control sexual offenders” (id., § 31).
Among other revisions to the Penal Code,
Subsequent to Proposition 83’s enactment, the California Department of Corrections and Rehabilitation (CDCR) sought to enforce section 3003.5(b) as a statutory parole condition by serving notice on registered sex offenders released on parole after November 8, 2006, including these petitioners,
The unified petition for writ of habeas corpus here before us was filed by four registered sex offender parolees subject to the new mandatory residency restrictions. In each case, the petitioner was convicted of a sex offense or offenses, for which lifetime registration was required pursuant to section 290, well before the passage of Proposition 83. In each case, the petitioner was released from custody on his current parole after November 8, 2006, the effective date of the new law.
At the threshold, petitioners contend that enforcement of section 3003.5(b)’s residency restrictions as to them constitutes an impermissible retroactive application of the statute, in contravention of the general statutory presumption that Penal Code provisions operate prospectively (§ 3), because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83. In a closely related argument, petitioners contend that such retroactive enforcement of section 3003.5(b) further violates the ex post facto clauses of the United States and California Constitutions insofar as it “ ‘makes more burdensome the punishment for a crime, after its commission.’ ” (Collins v. Youngblood (1990) 497 U.S. 37, 42 [111 L.Ed.2d 30, 110 S.Ct. 2715].) Petitioners also contend section 3003.5(b) is an unreasonable, vague, and overbroad parole condition that infringes on various federal and state constitutional rights, including their privacy rights, property rights, right to intrastate travel, and substantive due process rights under the federal Constitution.
We issued orders to show cause with respect to each petitioner’s claims, making them returnable before this court. We stayed enforcement of section 3003.5(b) as to these four named petitioners and consolidated their actions for purposes of briefing and oral argument in this court.
We have determined that petitioners’ retroactivity and ex post facto claims, common to all four petitioners, can be addressed on the record currently before us. We conclude they lack merit and must be denied.
Petitioners’ remaining claims — that section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on a number of their fundamental constitutional rights — present considerably more complex “as applied” challenges to the enforcement of the new residency restrictions
The trial courts of the counties to which petitioners have been paroled are in the best position to conduct such hearings and find the relevant facts necessary to decide the remaining claims in their respective jurisdictions. These would include, but are not necessarily limited to, establishing each petitioner’s current parole status; the precise location of each petitioner’s current residence and its proximity to the nearest “public or private school, or park where children regularly gather” (§ 3003.5(b)); a factual assessment of the compliant housing available to petitioners and similarly situated registered sex offenders in the respective counties and communities to which they have been paroled; an assessment of the way in which the mandatory parole residency restrictions are currently being enforced in those particular jurisdictions; and a complete record of the protocol CDCR is currently following to enforce section 3003.5(b) in those jurisdictions consistent with its statutory obligation to “assist parolees in the transition between imprisonment and discharge.” (§§ 3000, subd. (a)(1), 3074.)
Accordingly, the petition for writ of habeas corpus and orders to show cause previously issued with regard to each petitioner’s remaining claims shall be ordered transferred to the appropriate Courts of Appeal with directions that each matter be transferred to the trial court in the county to which the petitioner has been paroled, for further proceedings consistent with the views expressed herein.
I. STATEMENT OF THE CASE
A. Proposition 83 and CDCR’s enforcement of section 3003.5(b)
Proposition 83 was submitted to the voters on the November 7, 2006 ballot. The purpose of the initiative was described in section 2, which explains that “[s]ex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon,” that they “prey on the most innocent members of our society,” and that “[mjore than two-thirds of the victims of rape and sexual assault are under the age of 18.” (Prop. 83, § 2,
As explained in the official ballot pamphlet, Proposition 83 sought to achieve its proponents’ goal of creating “predator free zones around schools and parks to prevent sex offenders from living near where our children learn and play” through the enactment of mandatory residency restrictions in the form of an amendment to section 3003.5, a statute setting forth restrictions on where certain sex offenders subject to the lifetime registration requirement of section 290 may reside. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) argument in favor of Prop. 83, p. 46, capitalization & italics omitted (Voter Information Guide).) As noted, the initiative added new subdivision (b) to section 3003.5, making it “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.” (§ 3003.5(b), added by Prop. 83, § 21.)
On August 17, 2007, the Division of Adult Parole Operations (DAPO) of CDCR issued Policy No. 07-36, pertaining to the enforcement of section 3003.5(b) upon parolees. (CDCR, Policy No. 07-36: Implementation of Prop. 83, aka Jessica’s Law (Aug. 17, 2007) (Policy No. 07-36).) Under that policy, section 2616 of title 15 of the California Code of Regulations, setting forth grounds for revocation of parole, was revised to add “[vjiolation of the residency restrictions set forth in Penal Code Section 3003.5 for parolees required to register as provided in Penal Code Section 290,” as a reportable ground for revocation of parole. (Policy No. 07-36, supra, p. 1; see Cal. Code Regs., tit. 15, § 2616, subd. (a)(15).) The revised policy was applicable to “all parolees required to register as sex offenders pursuant to PC Section 290, released from custody on or after November 8, 2006,” including the following parolee categories: “Initial [rjeleases,” “Parole [violators [wjith a [n]ew [t]erm,” “Parolees released after having
Parole units were provided with two lists of registered sex offenders released on parole after November 8, 2006: those who were in compliance, and those who appeared to be out of compliance with the residency restrictions of section 3003.5(b). (Policy No. 07-36, supra, at p. 2.) Each parolee whose residence appeared to be out of compliance was to be served with a “Modified Condition of Parole Addendum” giving him 45 days within which to come into compliance with the residency restrictions or be subject to arrest and reincarceration for violating his parole. (Id., at pp. 5, 9.)
B. Petitioners
Petitioners are four registered sex offender parolees subject to the new mandatory parole residency restrictions.
Petitioner E.J. was convicted of forcible rape (§ 261, subd. (a)(2)) and robbery of an inhabited dwelling (former § 213.5, subd. (2)) in 1985 when he was 16 years old. The forcible rape conviction subjected him to the lifelong registration requirement of section 290. He served four years nine months in the California Youth Authority and was released in October 1989. In 1993, he was convicted of willful cruelty to a child (§ 273a, subd. (b)) and second degree robbery (§ 212.5). He served two years in prison for those offenses. In 2000, he was convicted of battery (§ 242) and possession of drug paraphernalia (Health & Saf. Code, § 11364). In 2004 he was convicted of failing to
According to his declaration, in September 2007, E.J. lived with his wife and their children in an apartment in San Francisco. He was informed by his parole agent that his residence was not compliant with section 3003.5(b) and that he would have to locate compliant housing by October 2, 2007, or face revocation of parole. Thereafter, because the original notice was defective, he was given an additional 10 days to comply. E.J. claims his parole agent initially told him there was no compliant housing in San Francisco, but subsequently told him there is a “small area near AT&T Park that is not within 2,000 feet of a school or park.” He declares, “I cannot afford to live near AT&T Park, as it is one of the most expensive areas in San Francisco. In addition, I do not believe that I would be able to establish a secure residence near AT&T Park because I believe that some law enforcement officials would consider it a park where children regularly gather.” At the time he prepared his declaration, E.J. was unable to move into compliant housing and was preparing to declare himself homeless.
2. S.P.
In 1998, petitioner S.P., then a minor, was tried as an adult and convicted by guilty plea of rape where the victim (a 15-year-old girl) was prevented from resisting by reason of an intoxicating or controlled substance. (§261, subd. (a)(3).) He served three years eight months in prison and was released from custody on parole in August 2001. The rape conviction subjected S.P. to lifetime registration under section 290. In 2002, he was convicted of knowingly receiving or concealing stolen property (§ 496, subd. (a)), served an additional four years eight months in prison, and was paroled in August 2006. In early March 2007, S.P. was taken into custody and charged with a parole violation for driving the wrong way down a one-way street while in possession of an open container of alcohol. He pled no contest and was released from custody on parole to Santa Clara County on March 22, 2007, after the effective date of section 3003.5(b).
According to his declaration, in August 2007 S.P. was informed by his parole agent that he was in violation of the residency restrictions because the apartment where he lived with his mother was within 2,000 feet of a daycare facility. He was told that if he did not move by October 11, 2007, he would face parole revocation and return to prison. He asserts his parole agent told him that “it was my responsibility to find compliant housing and that he
3. J.S.
In 1985, petitioner J.S. was convicted of indecent exposure in Texas pursuant to Texas Penal Code section 21.08, subdivision (a), which provides, “A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.” As a result of his conviction, he has been subject to the lifetime registration requirement of section 290 while residing in California. (See Pen. Code, §§ 290, subd. (c), 290.005, subd. (a).)
After coming to California, J.S. was convicted in 1990 of exhibiting or using a deadly weapon (§ 417, subd. (a)(1)); in 1991 of voluntary manslaughter (§ 192, subd. (a)); in 1999 and 2000 of battery against a current or former spouse, fiancée or cohabitant (§ 243, subd. (e)(1)); and in 2000 of willful infliction of corporal injury on a spouse or roommate (§ 273.5, subd. (a)). Following this last conviction and prison term, J.S. was released on parole to San Diego County in March 2006. In February 2007, his parole was revoked for failure to register. He was returned to prison and again released on parole in May 2007, after the effective date of section 3003.5(b).
According to his declaration, in August 2007 J.S. was informed by his parole agent that he would have to move from his San Diego County residence because it was within 2,000 feet of an elementary school and a park. J.S. asked if he could move to another state; his parole agent initially agreed to help him but thereafter told him the process to transfer his parole out of state could not be completed before he was required to find housing in compliance with section 3003.5(b), and that if he could not do so he would have to declare himself homeless or face parole revocation and return to prison. He thereafter lost his state funding to pay the rent for his noncompliant housing, could not locate compliant housing, and declared himself homeless in late September 2007.
4. K.T.
In 1990, petitioner K.T. was convicted of forcible rape (§ 261, subd. (a)(2)) and forcible oral copulation (§ 288a, subd. (c)(2)), for which he served a five-year prison term, and which convictions subjected him to the registration
According to his declaration, in August 2007, K.T. was served with formal notice that his residence was not in compliance with section 3003.5(b) because it was within 2,000 feet of an elementary school. At the time, K.T. was living with his disabled wife, for whom he provided care, in a house owned by them. At the time he submitted his declaration, K.T. was attempting to find compliant housing. He further indicates he filed an emergency grievance request with CDCR that was denied, with his appeal currently pending.
C. The petition for writ of habeas corpus
On October 4, 2007, E.J., S.R, J.S., and K.T. filed a unified petition for writ of habeas corpus seeking to temporarily and permanently enjoin CDCR from enforcing section 3003.5(b) against them as a statutory condition of their paroles. Petitioners advance a number of challenges to the statute. At the threshold, they contend that enforcement of section 3003.5(b) as to them constitutes an impermissible retroactive application of the statute, in contravention of the general statutory presumption that Penal Code provisions operate prospectively (§ 3), because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83. In a closely related argument, petitioners contend that such retroactive enforcement of section 3003.5(b) further violates the ex post facto clauses of the United States Constitution (art. I, § 10) and the California Constitution (art. I, § 9) because it “ ‘makes more burdensome the punishment for a crime, after its commission.’ ” (Collins v. Youngblood, supra, 497 U.S. at p. 42.) Petitioners also contend section 3003.5(b) is an unreasonable, vague, and overbroad parole condition that infringes on various state and federal constitutional rights, including their privacy rights, property rights, right to intrastate travel, and their substantive due process rights under the federal Constitution.
On October 10, 2007, we issued an order staying enforcement of section 3003.5(b) as to these four petitioners. On December 12, 2007, we issued orders to show cause with respect to each petitioner, returnable in this court.
A. Section 3003.5(b) enforced as a mandatory parole condition
Section 3003.5(b) makes it “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.” (§ 3003.5(b).) In the official ballot pamphlet, the proponents of the initiative measure told the voters the intent behind section 3003.5(b) was to create “predator free zones around schools and parks to prevent sex offenders from living near where our children learn and play.” (Voter Information Guide, supra, argument in favor of Prop. 83, p. 46, capitalization & italics omitted.) The Legislative Analyst told the voters that a violation of the new provision would constitute a parole violation for registered sex offenders on parole as well as a misdemeanor offense. (Id., analysis of Prop. 83 by Legis. Analyst, p. 44.)
Each petitioner before us is a paroled registered sex offender who specifically challenges CDCR’s attempts to enforce the new statutory residency restrictions against him as a ground for revocation of his parole. Section 3003.5 of the Penal Code is found in part 3, title 1, chapter 8 (entitled “Length of Term of Imprisonment and Paroles”) and, as the section’s language reflects, its provisions are obviously intended to apply to “person^] . . . released on parole.” (§ 3003.5, subd. (a), italics added.)
For purposes of these habeas corpus proceedings initiated by paroled registered sex offenders against CDCR, we therefore view petitioners as a necessarily included subgroup within the statutory phrase “any person[s] for whom registration is required pursuant to Section 290” (§ 3003.5(b)), namely, those persons for whom registration is required pursuant to Section 290 who were released on parole after November 8, 2006, the effective date of Proposition 83.
B. Retroactivity
Petitioners first claim section 3003.5(b)’s residency restrictions are being impermissibly applied retroactively to them. Specifically, petitioners argue that because they committed the underlying sex offenses that gave rise to the requirement that they register for life pursuant to section 290 well before the
“[S]ection 3 reflects the common understanding that legislative provisions are presumed to operate prospectively, and that they should be so interpreted ‘unless express language or clear and unavoidable implication negatives the presumption.’ [Citation.]” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208 [246 Cal.Rptr. 629, 753 P.2d 585].) “[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Id. at p. 1209.)
We conclude section 3 is not violated here. Each of these four petitioners was released from custody on his current parole and took up residency in noncompliant housing after section 3003.5(b)’s effective date. Under settled principles of law for determining whether a Penal Code provision is being applied prospectively or retroactively, it is clear that the new residency restrictions here in issue are being prospectively applied to petitioners.
Under its plain language, subdivision (b) applies to “any person for whom registration is required pursuant to Section 290.” (§ 3003.5(b).) A convicted sex offender who becomes subject to the registration requirement of section 290 must register “for the rest of his or her life while residing in California, or while attending school or working in California . . . .” (§ 290, subd. (b).) Accordingly, under the plain language of section 3003.5(b), any convicted sex offender already subject to the lifetime registration requirement who is released from custody on parole, whether it be after serving a term in custody for an initial sex offense conviction, a new sex offense conviction, or a new nonsex offense conviction, becomes subject to the new mandatory residency restrictions for the duration of his parole term. Should he take up residency in noncompliant housing after his release from custody, he will then be subject to parole revocation for a violation of section 3003.5(b). It matters not, under a straightforward application of the language of the statute, whether the registered sex offender is being released on his current parole for a sex or nonsex offense. Since he is already subject to the lifetime registration requirement of section 290, that status, together with his act of moving into noncompliant housing upon his release from custody on parole after the effective date of Proposition 83, subjects him to the residency restrictions of section 3003.5(b). In contrast, under the dissent’s interpretation of section 3003.5(b), all of the many thousands of registered sex offenders who
Each of the four petitioners before us was convicted of one or more sex offenses requiring that he register for life (§ 290, subd. (b)) years before Jessica’s Law was passed. However, each petitioner was not released from custody on his current parole until after the statute’s effective date, and each thereafter took up residency in noncompliant housing, making him subject to a reportable parole violation under CDCR’s Policy No. 07-36. CDCR takes the position that the statutory presumption against retroactivity of Penal Code provisions (§ 3) is not implicated where, as here, the new residency restrictions are being applied only to registered sex offenders who were released from prison custody on parole and who secured noncompliant housing after the statute’s effective date. The relevant case law supports CDCR’s position.
The applicable test for determining whether a statute is being applied prospectively or retroactively was explained in People v. Grant (1999) 20 Cal.4th 150 [83 Cal.Rptr.2d 295, 973 P.2d 72] (Grant). In that case we considered whether conviction of the crime of “continuous sexual abuse of a child” (§ 288.5, subd. (a)) for a course of conduct that included acts of child molestation committed both before and after section 288.5’s effective date was a retroactive application of the statute. We first observed: “As the United States Supreme Court has recognized, ‘deciding when a statute operates “retroactively” is not always a simple or mechanical task’ (Landgraf v. USI Film Products (1994) 511 U.S. 244, 268 [114 S.Ct. 1483, 128 L.Ed.2d 229]) and ‘comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event’ (id. at p. 270 . . .). In exercising this judgment, ‘familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.’ (Ibid.)” (Grant, at p. 157.)
We went on to explain, “In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date. (Landgraf v. USI Film Products, supra, 511 U.S. 244, 269-270 & fn. 23 ... ; see also Rodriguez v. General Motors Corp. (9th Cir. 1994) 27 F.3d 396, 398; Tapia v. Superior Court (1991) 53 Cal.3d 282, 291 [279 Cal.Rptr. 592, 807 P.2d 434]; Kizer v. Hanna (1989) 48 Cal.3d 1, 7 [255 Cal.Rptr. 412, 767 P.2d 679]; People v. Weidert (1985) 39 Cal.3d 836, 851 [218 Cal.Rptr. 57, 705 P.2d 380].) Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. (Travenol
We concluded in Grant, “Here, defendant was convicted of continuous sexual abuse, as defined in section 288.5, after the court instructed the jury to return a verdict of guilty only if it found that one of the required minimum of three acts of molestation occurred after section 288.5’s effective date. In other words, defendant could be convicted only if the course of conduct constituting the offense of continuous sexual abuse was completed after the new law became effective. Because the last act necessary to trigger application of section 288.5 was an act of molestation that defendant committed after section 288.5’s effective date, defendant’s conviction was not a retroactive application of section 288.5 and therefore not a violation of the statutory prohibition against retroactive application of the Penal Code.” (Grant, supra, 20 Cal.4th at pp. 157-158.)
Section 3003.5(b) places restrictions on where a paroled sex offender subject to lifetime registration pursuant to section 290 may reside while on parole. For purposes of retroactivity analysis, the pivotal “last act or event” (Grant, supra, 20 Cal.4th at p. 157) that must occur before the mandatory residency restrictions come into play is the registered sex offender’s securing of a residence upon his release from custody on parole. If that “last act or event” occurred subsequent to the effective date of section 3003.5(b), a conclusion that it was a violation of the registrant’s parole does not constitute a “retroactive” application of the statute.
The facts and holding in Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275 [68 Cal.Rptr.3d 142] (Bourquez) are particularly instructive here, as they involve the question whether another provision of Jessica’s Law enacted by Proposition 83 was being applied prospectively or retroactively.
At issue in Bourquez was that portion of Jessica’s Law approved by the voters at the November 7, 2006 election that extended the commitment terms of persons determined to be sexually violent predators under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) from two years to an indeterminate term. The petitioner in Bourquez claimed that to apply the new indeterminate term for sexually violent predators to individuals like himself who had pending recommitment petitions at the time Proposition 83 was enacted would be an impermissible retroactive application of the new statute. The Bourquez court explained, “Proposition 83 is entirely silent on the question of retroactivity, so we presume it is intended to operate only
The Bourquez court went on to explain that, “[bjecause a proceeding to extend commitment under the SVPA focuses on the person’s current mental state, applying the indeterminate term of commitment of Proposition 83 does not attach new legal consequences to conduct that was completed before the effective date of the law. [Citation.] Applying Proposition 83 to pending petitions to extend commitment under the SVPA to make any future extended commitment for an indeterminate term is not a retroactive application.” (Bourquez, supra, 156 Cal.App.4th at p. 1289.)
Significantly, the Bourquez court did not find the fact of, or dates of, the sex offense convictions that first qualified the defendant as a sexually violent predator to be controlling on his retroactivity claim. Rather, since the relevant provision of Jessica’s Law pertained to a sexually violent predator’s current mental state, the court concluded that to apply the new law to a defendant already under a fixed-term commitment as a sexually violent predator was a prospective, and not an impermissible retrospective, application of the statute.
By parity of reasoning, the provisions of Jessica’s Law here under scrutiny — section 3003.5(b)’s statutory residency restrictions — are not implicated until a convicted and registered sex offender is released from custody and must take up residency in the community to which he has been paroled. Applying the mandatory residency restrictions to these four petitioners, who were released from prison on parole after the effective date of Jessica’s Law, and who thus had ample notice of the necessity of securing housing in compliance with the restrictions at the time they moved into noncompliant housing, is simply not a retroactive application of the new law. (Bourquez, supra, 156 Cal.App.4th at p. 1289.)
It may be that if a registered sex offender was released from custody on his current parole term prior to November 8, 2006, and secured noncompliant housing prior to that date, in which he currently resides, application of the residency restrictions to him would constitute an impermissible retrospective
Contrary to petitioners’ argument, the fact that they were all convicted of sex offenses giving rise to their status as lifetime registrants pursuant to section 290 well prior to the passage of Jessica’s Law does not, in itself, establish that the new parole residency restrictions are now being applied retroactively to them. The decision in People v. Mills (1992) 6 Cal.App.4th 1278 [8 Cal.Rptr.2d 310] (Mills) succinctly explains the point in an analogous context.
The defendant in Mills was convicted in 1981 of felony possession of marijuana for sale. At that time, section 12021, subdivision (a) provided, “Any person who has been convicted of a felony under the laws of . . . California . . . who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense . . . .” (Italics added.) Subsequently, section 12021, subdivision (a) was amended, effective January 1, 1990, to provide, “Any person who has been convicted of a felony under the laws of. . . California . . . who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” (Stats. 1989, ch. 1044, § 3, p. 3633, italics added.) After the effective date of the amendment, the defendant brought a shotgun into a sporting goods store to have it repaired. His status as an ex-felon was discovered and he was arrested, charged, and convicted of being a felon in possession of a firearm in violation of amended section 12021, subdivision (a). The defendant appealed, contending the 1990 amendment to section 12021, subdivision (a) was an unconstitutional ex post facto law being applied to him. (Mills, supra, 6 Cal.App.4th at pp. 1281-1282.)
The Mills court first explained that the question whether a new law is being applied retrospectively is closely intertwined with the question whether it is an unconstitutional ex post facto law, because a finding that the law is being applied retrospectively is a threshold requirement for finding it impermissibly ex post facto. For this principle Mills cited the high court’s decision
The Mills court concluded the defendant’s conviction as a felon in possession of a firearm under the amended version of section 12021, subdivision (a) — which broadened the definition of the crime from possession of a concealable firearm to possession of any firearm — was neither a retroactive application of the new law nor conviction of an ex post facto law. The court explained, “Here defendant was convicted of conduct, his possession of a shotgun, occurring after the effective date of the statute. His conduct was a violation of the new statute, rather than an increase of punishment for the earlier offense of possessing marijuana for sale. Although the statute only applied to him because of his status as a person convicted of a felony, and the felony conviction occurred before the statute became effective, the fact of his prior conviction only places him into a status which makes the new law applicable to him. The legal consequences of his past conduct were not changed — only a new law was applied to his future conduct.” (Mills, supra, 6 Cal.App.4th at p. 1286, fn. omitted.)
The Mills court emphasized that “defendant knew, or should have known, that it was a crime for him to possess a shotgun after January 1, 1990. He had fair warning of the new law, and he did possess a shotgun after that date. [Citation.] His conviction for doing so was not retrospective. Although the new law applied to him because he had the status of a felony offender, he was not additionally punished for possessing marijuana for sale but rather was punished for committing a new crime, possession of a firearm by a felon, after the amendment to the statute became effective. [Citation.]” (Mills, supra, 6 Cal.App.4th at p. 1289.)
Here, given that petitioners were released on their current parole terms after the effective date of Jessica’s Law, petitioners knew, or should have known, that they would be subject to a reportable parole violation if they moved into housing that did not comply with the newly enacted residency restrictions that took effect prior to their release. They are thus presumed to
The dissent argues that, by finding section 3003.5(b) applies prospectively to lifetime sex registrants who were released on parole and moved to noncompliant housing after the effective date of Proposition 83, we contravene Strauss v. Horton (2009) 46 Cal.4th 364 [93 Cal.Rptr.3d 591, 207 P.3d 48] (Strauss), where we concluded that Proposition 8’s state constitutional ban on same-sex marriage cannot be applied retroactively to same-sex couples who married prior to the initiative’s effective date. The dissent is wrong. As we explained in Strauss, the affected same-sex couples took affirmative steps in reliance on this court’s holding in In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384] that the California Constitution included a right to same-sex marriage. Thus, we observed, “[w]ere Proposition 8 to be applied to invalidate or to deny recognition to marriages performed prior to November 5, 2008 [the date Proposition 8 became effective], rendering such marriages ineffective in the future, such action would take away or impair vested rights acquired under the prior state of the law and would constitute a retroactive application of the measure.” (Strauss, supra, at p. 472, italics added.) In other words, unless the voters clearly provided otherwise, Proposition 8 could alter th& future right to marry, but it could not negate or undo permanent legal relationships that were allowed — indeed protected — by the Constitution at the time they were entered into.
Petitioners here took no affirmative action, prior to the effective date of Proposition 83, in reliance on an earlier state of the law that gave them a “vested right” against future statutory restrictions concerning where they might thereafter establish residency. Nor does Proposition 83 purport to undo any vested rights. As applied to these petitioners, Proposition 83 operates only on actions they took, with fair notice of the new residency restrictions, after the initiative’s effective date. That Proposition 83’s restrictions on where parolees released after its effective date may thereafter live derives from their prior status as lifetime sex offender registrants does not mean the measure is being applied retroactively to them. The dissent’s attempt to invoke Strauss is thus unpersuasive.
C. Ex post facto
Petitioners next make the closely related argument that section 3003.5(b) is an unconstitutional ex post facto law if retroactively applied to them. The claim is unavailing given our conclusion that the law is not being applied retroactively to these petitioners.
Both the United States Constitution (art. I, §§ 9 & 10) and the California Constitution (art. I, § 9) prohibit the passage of ex post facto laws. In Collins v. Youngblood, supra, 497 U.S. 37, the high court explained that an impermissible ex post facto law is one which “ ‘makes more burdensome the punishment for a crime, after its commission.’ ” (Id. at p. 42.) “Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. [Citations.] The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation. [Citations.] [f] In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” (Weaver v. Graham, supra, 450 U.S. at pp. 28-29, some italics added, fns. omitted.) This court has observed that there is no significant difference between the federal and state ex post facto clauses. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-297 [279 Cal.Rptr. 592, 807 P.2d 434].)
In In re Ramirez (1985) 39 Cal.3d 931 [218 Cal.Rptr. 324, 705 P.2d 897], we considered whether, under the state and federal ex post facto clauses, a new statutory plan for awarding prison conduct credits could be applied to prisoners whose crimes occurred before the effective date of the new scheme, but whose prison behavior that could lead to a reduction in credits was committed after the new scheme went into effect. (Ramirez, at p. 932.) We concluded that it may. (Ibid.) Applying the test set forth in Weaver v. Graham, supra, 450 U.S. at pages 28-29, to determine whether the new sentencing credit scheme was impermissibly retrospective, we explained,
The rationales of In re Ramirez, supra, 39 Cal.3d 931, and Mills, supra, 6 Cal.App.4th at page 1285, apply here and support rejection of petitioners’ ex post facto claim. True, section 3003.5(b) applies to these petitioners only by virtue of their status as registered sex offenders, a status they achieved upon their convictions of qualifying sex offenses prior to the enactment of Jessica’s Law and section 3003.5(b). Nevertheless, the new residency restrictions apply to events occurring after their effective date— petitioners’ acts of. taking up residency in noncompliant housing upon their release from custody on parole after the statute’s effective date. It follows that section 3003.5(b) is not an ex post facto law if applied to such conduct occurring after its effective date because it does not additionally punish for the sex offense conviction or convictions that originally gave rise to the parolee’s status as a lifetime registrant under section 290. (Collins v. Youngblood, supra, 497 U.S. at p. 42; Mills, supra, 6 Cal.App.4th at p. 1285.)
D. Petitioners’ remaining claims
Petitioners further contend section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on various state and federal constitutional rights, including their privacy rights, property rights, right to intrastate travel, and their substantive due process rights under the federal Constitution. In support of these claims, petitioners have appended declarations and various materials as exhibits to their petition and traverse in an effort to establish a
In contrast with the retroactivity and ex post facto issues we have addressed above, petitioners’ remaining constitutional claims present considerably more complex “as applied” challenges to the enforcement of the new residency restrictions as parole violations in the particular jurisdictions to which each petitioner has been paroled. Petitioners are not all similarly situated with regard to their paroles. They have been paroled to different cities and counties within the state, and the supply of housing in compliance with section 3003.5(b) available to them during their terms of parole — a matter critical to deciding the merits of their as-applied constitutional challenges — is not sufficiently established by those declarations and materials to permit this court to decide the claims.
For example, petitioners have appended small maps to the petition (exhibit E), which they argue establish that “nearly all of the cities of San Diego, Los Angeles, and San Francisco are off limits [to registered sex offenders released on parole].” But the small maps, comprising almost indiscernible, variably shaded gray areas purporting to depict the scarcity of section 3003.5(b) compliant housing across the state, contain no dates reflecting when they were prepared, no street names or addresses, no indication of where these petitioners are residing in relation to the maps, no indication of the locations of any schools or “parks where children regularly gather,” and no legend adequately explaining how the maps were prepared or precisely what they purport to show. CDCR, in turn, has denied the allegations made by petitioners in reliance on the maps, further noting petitioners have not authenticated the maps on which they purport to rely.
As another example, petitioners allege in their traverse that section 3003.5(b) “makes entire cities off-limits to sex offenders, including Petitioners,” that under the residency restrictions, “[section 290] registrants [are] unable to find a single compliant home in the cities in which they were paroled,” and that the restrictions are “so unreasonably broad” as to leave those to whom it applies “with no option but prison or homelessness, as is the case here.” But these allegations appear to conflict with certain materials appended to petitioners’ traverse, specifically, a report to the Legislature and Governor’s office, prepared in January 2008 by the California Sex Offender Management Board (CASOMB),
The section 3003.5(b) housing compliance statistics reported in the CASOME Report for the first year the residency restrictions were in effect are difficult to reconcile with petitioners’ allegations that compliant housing has been virtually unavailable to them in the various communities to which they have been paroled.
Finally, the matter of whether CDCR and, in particular, DAPO are obligated by law to identify compliant housing for petitioners or otherwise assist them in locating and securing such housing,
With regard to petitioners’ remaining claims, we therefore conclude that evidentiary hearings will have to be conducted to establish the relevant facts necessary to decide each such claim. The trial courts of the counties to which petitioners have been paroled are manifestly in the best position to conduct such hearings and find the relevant facts necessary to decide the claims with regard to each such jurisdiction. These facts would include, but are not necessarily limited to, establishing each petitioner’s current parole status; the precise location of each petitioner’s current residence and its proximity to the nearest “public or private school, or park where children regularly gather” (§ 3003.5(b)); a factual assessment of the compliant housing available to petitioners and similarly situated registered sex offenders in the respective counties and communities to which they have been paroled; an assessment of the way in which the mandatory parole residency restrictions are currently
III. DISPOSITION
The claims that section 3003.5(b), construed as a statutory parole condition, is being impermissibly retroactively enforced as to these petitioners and, as thus enforced, constitutes an ex post facto law under the state and federal Constitutions, are denied. For consideration of petitioners’ remaining claims, the petition and orders to show cause previously issued are hereby ordered transferred to the Courts of Appeal as follows: In re E.J. on Habeas Corpus, S156933, to the First District Court of Appeal; In re S.P. on Habeas Corpus, S157631, to the Sixth District Court of Appeal; In re J.S. on Habeas Corpus, S157633, and In re K.T. on Habeas Corpus, S157634, to Division One of the Fourth District Court of Appeal, with directions that each matter be transferred to the trial court in the county to which the petitioner has been paroled for further proceedings consistent with the views expressed herein. (Cal. Rules of Court, rule 10.1000(a).) The order staying enforcement of section 3003.5(b) as to these four petitioners, previously issued on October 10, 2007, shall remain in effect.
George, C. J., Chin, J., and Corrigan, J., concurred.
All further undesignated statutory references are to the Penal Code.
Section 290 imposes upon individuals convicted of certain sex offenses a lifetime requirement that they register with law enforcement in the communities in which they reside.
On October 11, 2007, the CDCR issued a revised policy for the implementation of section 3003.5(b), requiring noncompliant parolees to either “immediately provide a compliant residence or declare themselves transient.” (CDCR, Policy No. 07-48: Revised Procedures for Jessica’s Law Notice to Comply (Oct. 11, 2007) [amending Policy No. 07-36].)
Petitioners requested that we permit their supporting declarations to be filed under seal and to otherwise not disclose their identities given the particular subject matter of these proceedings. In a departure from our usual practice (see Cal. Style Manual (4th ed. 2000) § 5:9, pp. 179-180), we granted their request. Upon transfer of the petition and orders to show cause previously issued on all remaining claims to the lower courts, those courts are free to reevaluate the necessity of conducting further proceedings under seal and not disclosing the identities of petitioners.
The 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.
To be contrasted with the holding in Bourquez is the holding in People v. Whaley (2008) 160 Cal.App.4th 779 [73 Cal.Rptr.3d 133], As in Bourquez, the provision at issue in Whaley was that part of Jessica’s Law that extended the commitment terms of sexually violent predators under the SVPA from two years to an indeterminate term. (Whaley, at pp. 785-786.) Unlike Bourquez, however, which involved a recommitment petition already pending at the time Jessica’s Law was passed, in Whaley the People simply petitioned the court to summarily convert the defendant’s preexisting two-year fixed-term commitment as a sexually violent predator into an indeterminate term under the new law after the provision had passed.
CDCR also takes the position that if section 3003.5(b) is being applied retroactively to these petitioners, then the language of the initiative measure itself, as well as statements in the ballot pamphlet submitted to the voters, reflects that the new parole residency restrictions were plainly intended to have such retroactive effect. We need not and do not address the contention given our conclusion that section 3003.5(b) is only being applied prospectively to these petitioners.
CASOMB comprises representatives from the Attorney General’s office, CDCR, regional parole administration, the judicial branch, district attorneys’ offices, public defenders’ offices, probation departments, law enforcement agencies, as well as victims advocates and licensed treatment providers, among others.
It bears observing that a parole term is a component of the inmate’s original sentence, and that parolees remain in the constructive custody of CDCR for the duration of their fixed parole terms and are not formally “discharged” from the department’s custody until the expiration of the parole term. (See §§ 3000, subd. (a)(1), 3056.) CDCR has a statutory obligation to “assist parolees in the transition between imprisonment and discharge.” (§§ 3000, subd. (a)(1), 3074.) The extent to which such obligation includes assisting sex offender registrant parolees in identifying or securing housing in compliance with section 3003.5(b) in the communities to which they are paroled remains unclear.
As emphasized at the outset, petitioners here challenge only the enforcement of section 3003.5(b) as a statutory parole condition setting forth residency restrictions applicable to paroled registered sex offenders like themselves. There is no evidence before us of any attempts, to date, to enforce the statute outside of that limited context. Accordingly, in this case, the inquiry into petitioners’ challenge to section 3003.5(b) as an unreasonable statutory parole condition that infringes on their constitutional rights is necessarily circumscribed. The Legislature has given the CDCR and its DAPO expansive authority to establish and enforce rules and regulations governing parole, and to impose any parole conditions deemed proper. (§§ 3052, 3053; see Terhune v. Superior Court (1998) 65 Cal.App.4th 864, 874 [76 Cal.Rptr.2d 841] (Terhune).) “These conditions must be reasonable, since parolees retain constitutional protection against arbitrary and oppressive official action.” (Terhune, at p. 874; see also In re Stevens (2004) 119 Cal.App.4th 1228, 1234 [15 Cal.Rptr.3d 168]; People v. Thompson (1967)
The dissent suggests that “[w]hen a statutory restriction substantially impinges on a person’s constitutional right to intrastate travel and does not further the statute’s objective, it must be struck down as to that person.” (Dis. opn. of Moreno, J., post, at p. 1297; see id., fn. 3 [suggesting the same result for a violation of the state constitutional right of privacy].) But here, the threshold question common to all of petitioners’ remaining as-applied constitutional challenges to section 3003.5(b) is whether the section, when enforced as a statutory parole condition against registered sex offenders, constitutes an unreasonable parole condition to the extent it infringes on such parolees’ fundamental rights. “Although a parolee is no longer confined in prison[,] his custody status is one which requires and permits supervision and surveillance under restrictions which may not be imposed on members of the public generally.” (Burgener, supra, 41 Cal.3d at p. 531; see In re Stevens, supra, 119 Cal.App.4th at p. 1233.) Hence, the limited nature of the rights retained by registered sex offenders while serving out a term of parole, whether it be with regard to the right to travel, to privacy, or to associate with persons of one’s choosing, must inform the inquiry as to whether section 3003.5(b) places reasonable or unreasonable restrictions on the paroles of registered sex offenders.
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