Citation 47 Cal. 4th 1258, 223 P.3d 31, 104 Cal. Rptr. 3d 165
In re E.J.
Filed 2/1/10
IN THE SUPREME COURT OF CALIFORNIA
In re E.J. on Habeas Corpus.
S156933
In re S.P. on Habeas Corpus.
S157631
In re J.S. on Habeas Corpus.
S157633
In re K.T. on Habeas Corpus.
S157634
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
“strengthen[ing] and improv[ing] the laws that punish and control sexual offenders” (id.,
§ 31).
Among other revisions to the Penal Code,1 Proposition 83 amended section
3003.5, a statute setting forth restrictions on where certain sex offenders subject to the
lifetime registration requirement of section 2902 may reside. New subdivision (b), added
to section 3003.5, provides: “Notwithstanding any other provision of law, it is unlawful
1
All further undesignated statutory references are to the Penal Code.
2
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.
1
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, subd. (b) (section 3003.5(b).) The new residency restrictions took effect on
November 8, 2006, the effective date of Proposition 83.
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, requiring them to comply with the
mandatory residency restrictions or face revocation of parole and reincarceration.
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.)
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
2
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 in the respective 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 extent 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 factually established on the declarations and materials
appended to their petition and traverse. With regard to petitioners‟ remaining
constitutional claims, evidentiary hearings will therefore have to be conducted to
establish the relevant facts necessary to decide each claim.
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
3
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 “[m]ore
than two-thirds of the victims of rape and sexual assault are under the age of 18.” (Prop.
83, § 2, subd. (b).) Section 2 further declares that “Californians have a right to know
about the presence of sex offenders in their communities, near their schools, and around
their children” (id., subd. (g)), and that “California 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).) Section 2 also states, “It is the intent of the People in enacting this measure to
4
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).)
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 (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 Proposition 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 “[v]iolation 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
[r]eleases,” “Parole [v]iolators [w]ith a [n]ew [t]erm,” “Parolees released after having
5
served a period of revocation,” and “Parolees released from any other jurisdiction‟s
custody . . . .”3 (Policy No. 07-36, at p. 1.)
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. 4 As noted, 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 prison on his current parole (after serving his latest term in prison custody for a
nonsex offense) after November 8, 2006, the effective date of section 3003.5(b). Each
petitioner was thereafter served with a 45-day letter imposing the residency restrictions as
an additional statutory condition of parole.
3
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].)
4
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.
6
1. E.J.
Petitioner E.J. was convicted of forcible rape (§ 261, subd. (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
register under section 290, sentenced to prison, and paroled once again in August 2005.
Thereafter, he suffered numerous additional parole violations and was returned to prison
on three separate occasions. He was last released from prison custody on parole in
February 2007, after the effective date of section 3003.5(b).
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.
7
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 could not provide me with any assistance.” He asked to
transfer his parole out of Santa Clara County but was told by his parole agent that the
process would take at least 60 days, by which time he would be in violation of the
residency restrictions. At the time he filed his habeas corpus petition, S.P. and his mother
had been unable to locate compliant housing in Santa Clara County.
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
8
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. (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 requirement of section 290.
In 2001, he was convicted of felony grand theft (§ 487), returned to prison, and thereafter
9
released on parole in January 2006. In June 2007, his parole was revoked based on his
failure to register under section 290. Following his return to prison for the parole
revocation, he was again released on parole to San Diego County in August 2007, after
the effective date of section 3003.5(b).
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.P., 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
10
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.
II. ANALYSIS
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, at p. 46.) 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, at 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
“persons released on parole.” (§ 3003.5, subd. (a), italics added.)5
5
The further question 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,
11
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 voters enacted section 3003.5(b),
the new law retroactively attaches new legal consequences to their prior convictions.
Insofar as Jessica‟s Law fails to explicitly state that any of its provisions are retroactive,
petitioners contend that application of the new residency restrictions to them contravenes
section 3 of the Penal Code, which provides, as a general matter, that “No part of [the
Penal Code] is retroactive, unless expressly so declared.” (§ 3.)
“[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.) “[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.)
whether on parole or otherwise, have ever been separately charged with such an offense
under the new provision.
12
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 achieved that status prior to November 8, 2006, the
13
effective date of Proposition 83, will enjoy a free lifetime pass from section 3003.5(b)‟s
residency restrictions, irrespective of their parole status.
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
(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)
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.)
14
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;
Kizer v. Hanna (1989) 48 Cal.3d 1, 7; People v. Weidert (1985) 39 Cal.3d 836, 851.) 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 Laboratories, Inc. v. U.S. (Fed. Cir. 1997) 118 F.3d 749, 752; McAndrews v.
Fleet Bank of Massachusetts, N.A. (1st Cir. 1993) 989 F.2d 13, 16.) A law is not retroactive
„merely because some of the facts or conditions upon which its application depends came
into existence prior to its enactment.‟ (Kizer v. Hanna, supra, 48 Cal.3d at p. 7.)” (Grant,
supra, 20 Cal.4th at p. 157.)
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 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)
15
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
(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 prospectively. The
question is whether applying its provisions to pending petitions to extend commitment is
a prospective application.” (Bourquez, supra, 156 Cal.App.4th at p. 1288, italics added.)
The Bourquez court went on to explain that, “[b]ecause a proceeding to extend
commitment under the SVPA focuses on a 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
16
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.)6
6
To be contrasted with the holding in Bourquez is the holding in People v. Whaley
(2008) 160 Cal.App.4th 779. 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.
17
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 application of the statute. Under those
circumstances, he would not have had notice of the new 2,000-foot “predator free zone”
restrictions prior to his release from custody on parole and the securing of his current
residence, the conduct to which section 3003.5(b) speaks. (See Doe v. Schwarzenegger
(E.D.Cal. 2007) 476 F.Supp.2d 1178, 1179, fn. 1 [holding that § 3003.5(b) could not be
applied retroactively to persons convicted of registrable offenses prior to the effective
date of the statute “and who were paroled, given probation, or released from incarceration
prior to that date”].) However, all four petitioners here were released from custody on
their current parole terms, and then secured their noncompliant housing, after the
effective date of Jessica‟s Law. By doing so, they violated a law already in effect, and
application of that law to those violations is not “retroactive.”
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 (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
18
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, italics added.)
After the effective date of the amendment, 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 in Weaver v. Graham (1981) 450 U.S.
24, which explained 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.‟ ” (Mills,
supra, 6 Cal.App.4th at pp. 1282-1283, quoting Weaver v. Graham, supra, 450 U.S. at
pp. 28-29.) Generally, where a new law “retroactively increase[s] the punishment for [a]
crime, it [is] retrospective for purposes of the ex post facto test.” (Mills, supra,
6 Cal.App.4th at p. 1285.) “The clearest example of [an ex post facto] law is one which
defines a new crime and applies its definition retroactively to [punish] conduct which was
not criminal at the time it occurred.” (Id. at p. 1282.)
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
19
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 have had fair notice of the new restrictions applicable to them prior
to their release on parole and their securing of noncompliant housing. To require
petitioners to comply with the new residency restrictions or face a parole violation for
failing to do so is thus not a retrospective application of the law. Although they fall
20
under the new restrictions by virtue of their status as registered sex offenders who have
been released on parole, they are not being “additionally punished” for commission of the
original sex offenses that gave rise to that status. Rather, petitioners are being subjected
to new restrictions on where they may reside while on their current parole — restrictions
clearly intended to operate and protect the public in the present, not to serve as additional
punishment for past crimes.
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 (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 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 Prop. 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 the 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
21
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.
We therefore conclude petitioners‟ retroactivity claim must be rejected. Enforcing
section 3003.5(b)‟s residency restrictions against them is a prospective, not a
retrospective, application of that law.7
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 and 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
7
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, reflect 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.
22
by restraining arbitrary and potentially vindictive legislation. [Citations.] [¶] 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.)
In In re Ramirez (1985) 39 Cal.3d 931, 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. (Id. 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, “For a law to be retrospective, „it must apply to events
occurring before its enactment.‟ [Citation.] A retrospective law violates the ex post facto
clauses when it „substantially alters the consequences attached to a crime already
completed, and therefore changes “the quantum of punishment.” ‟ [Citation.] [¶] We
conclude that the 1982 amendments are not retrospective and therefore do not violate the
ex post facto clauses. Petitioner, citing [In re Paez (1983) 148 Cal.App.3d 919],
contends that the 1982 amendments relate to the original offense, not to the infraction
committed in prison. We disagree. It is true that the 1982 amendments apply to
petitioner only because he is a prisoner and that he is a prisoner only because of an act
committed before the 1982 amendments. Nonetheless, the increased sanctions are
imposed solely because of petitioner‟s prison misconduct occurring after the 1982
23
amendments became effective. In other words, the 1982 amendments apply only to
events occurring after their enactment. If any aspect of prison life is unconnected to a
prisoner's original crime, it would seem to be the sanctions for his misconduct while in
prison. Accordingly, the 1982 amendments, which change the sanctions for that
misconduct, do not relate to petitioner‟s original crime and are not retrospective under
Weaver [v. Graham].” (In re Ramirez, supra, 39 Cal.3d at pp. 936-937; see also Mills,
supra, 6 Cal.App.4th at p. 1285.)
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
24
and traverse in an effort to establish a factual basis for each claim. CDCR, in its return,
has denied many of the allegations advanced in the petition in reliance on such exhibits.
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
25
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),8 setting forth “An Assessment of Current Management Practices of
Adult Sex Offenders in California.” (Exhibit O; CASOMB Report.) The CASOMB
Report indicates, under the subheading “Current Status of Housing Compliance,” that
“As of December 9, 2007 [13 months after § 3003.5(b) took effect, and two months after
the petition for writ of habeas corpus was filed in this court], 3,884 parolees subject to
Jessica‟s Law were under the supervision of a parole agent in California communities.
3,166 of this population reside in compliant housing, while 718 have declared themselves
transient. . . . [¶] Although the 3,884 parolees represent[] the total number of offenders
that remain in the community under parole supervision, and CDCR enforcement efforts
have resulted in near full compliance with the housing challenges of Jessica’[s] Law,
these offenders represent approximately half of the population subject to Jessica‟s Law
released during this period (7516).” (CASOMB Rep., supra, at p. 125, italics added.)
The section 3003.5(b) housing compliance statistics reported in the CASOMB
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
8
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.
26
securing such housing,9 a matter that may factor into resolution of petitioners‟ claim that
section 3003.5(b) is being enforced against them as an unreasonable parole condition that
infringes on a number of their fundamental constitutional rights,10 also appears disputed
9
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.
10
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 (Terhune).) “These conditions must be
reasonable, since parolees retain constitutional protection against arbitrary and oppressive
official action.” (Ibid.; see also In re Stevens (2004) 119 Cal.App.4th 1228, 1234; People
v. Thompson (1967) 252 Cal.App.2d 76, 84.) “Nevertheless, the conditions may govern a
parolee’s residence, his associates or living companions, his travel, his use of intoxicants,
and other aspects of his life.” (Terhune, at p. 874, italics added; see generally Morrissey
v. Brewer (1972) 408 U.S. 471, 482 [parolees have fewer constitutional rights than do
ordinary persons]; People v. Burgener (1986) 41 Cal.3d 505, 531-532 (Burgener),
overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 754, 756.)
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
pp. 16-17 & 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
27
by the parties. Petitioners point to a statement in CDCR‟s Policy No. 07-36 that cautions:
“The responsibility to locate and maintain compliant housing shall ultimately remain with
the individual parolee through utilization of available resources” (Policy No. 07-36,
supra, at p. 2) in support of their allegation that “Respondent has provided little to no
assistance to individual parolees attempting to find compliant housing. Petitioners and
other noncompliant parolees have not been informed of areas in their counties where
compliant housing may be found.” CDCR, in turn, “denies the allegation that it provides
„little to no assistance to individual parolees attempting to find compliant housing‟; it
does provide such assistance.”
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 being enforced in each particular jurisdiction; and a
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.
28
complete record of the protocol CDCR is currently following to enforce section
3003.5(b) in those respective jurisdictions.
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.
BAXTER, J.
WE CONCUR:
GEORGE, C. J.
CHIN, J.
CORRIGAN, J.
29
CONCURRING OPINION BY WERDEGAR, J.
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 qualifying 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
1
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 II”]); 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
1
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.”
2
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.
WERDEGAR, J.
3
DISSENTING OPINION BY MORENO, J.
I.
I respectfully dissent.
Penal Code section 3003.5, subdivision (b) (section 3003.5(b)) cannot be applied
to those who suffered their convictions before the date Proposition 83 (Prop. 83, as
approved by the voters, Gen. Elec. (Nov. 7, 2006)) was enacted. Nothing in the language
of the proposition or in the relevant extrinsic materials supports any other conclusion.1
Therefore, section 3003.5(b) does not apply to these petitioners and I dissent from the
majority opinion‟s contrary conclusion.
Before I turn to the majority opinion, I begin with a review of “well-established
general principles governing the question whether a statutory or constitutional provision
should be interpreted to apply prospectively or retroactively.” (Strauss v. Horton (2009)
46 Cal.4th 364, 470.) There is a statutory presumption against retroactive application of
penal laws, articulated in section 3, first enacted in 1872, which states: “No part of [the
Penal Code] is retroactive, unless expressly so declared.” This presumption is, as we
have noted, rooted in federal “constitutional principles” reflected in such provisions as
the ex post facto clause, the Fifth Amendment‟s takings clause, and the due process
clause of the United States Constitution. (Myers v. Philip Morris Companies, Inc. (2002)
28 Cal.4th 828, 841.)
1
All further statutory references are to the Penal Code.
1
A statute is retroactive when it “change[s] the legal consequences of past conduct
by imposing new or different liabilities . . . .” (Tapia v. Superior Court (1991) 53 Cal.3d
282, 291.) “California continues to adhere to the time-honored principle . . . that in 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.” (Evangelatos v. Superior Court (1988) 44 Cal.3d
1188, 1208-1209, italics added.) As we have repeatedly explained, absent an express
declaration of retroactivity, “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, italics added.) The key here is clarity: “a statute
may be applied retroactively only if it contains express language of retroactivity or if
other sources provide a clear and unavoidable implication that the Legislature [or the
voters] intended retroactive application.” (Myers v. Philip Morris Companies, Inc.,
supra, 28 Cal.4th at p. 844, second italics added.)
Ambiguous, vague or inconclusive statements cited as proof of an intention that a
statute be applied retroactively are not sufficient for that purpose. “[A]t least in modern
times, we have been cautious not to infer the voters‟ or the Legislature‟s intent on the
subject of prospective versus retrospective operation from „vague phrases‟ [citation] and
„broad, general language‟ [citation] in statutes, initiative measures and ballot pamphlets.”
(Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 229-230.)
When a statute is ambiguous regarding retroactivity, it is construed to be prospective.
(Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 841.) Moreover, “a
remedial purpose does not necessarily indicate an intent to apply the statute retroactively.
Most statutory changes are, of course, intended to improve a preexisting situation and to
bring about a fairer state of affairs, and if such an objective were itself sufficient to
demonstrate a clear legislative intent to apply a statute retroactively, almost all statutory
2
provisions and initiative measures would apply retroactively rather than prospectively.”
(Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1213.)
The question of whether Proposition 83 was intended to apply retroactively has
already been recognized, asked, and answered by two decisions of the Court of Appeal
and a federal district court judge. They unanimously concluded that Proposition 83 does
not contain an express statement of retroactivity. The two Court of Appeal decisions are
People v. Whaley (2008) 160 Cal.App.4th 779 and Bourquez v. Superior Court (2007)
156 Cal.App.4th 1275. The provision of Proposition 83 at issue in both of those cases
was the part of the initiative 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. (People v.
Whaley, supra, 160 Cal.App.4th at pp. 785-786; Bourquez v. Superior Court, supra, 156
Cal.App.4th at pp. 1279-1280.)
In Bourquez, the retroactivity question was whether the new indeterminate term
for sexually violent predators could be applied to individuals who had pending
recommitment petitions at the time Proposition 83 was enacted. As the starting point of
its analysis, the court observed: “Proposition 83 is entirely silent on the question of
retroactivity, so we presume it is intended to operate only prospectively. The question is
whether applying its provisions to pending petitions to extend commitment is a
prospective application.” (Bourquez v. Superior Court, supra, 156 Cal.App.4th at
p. 1288.) The court ultimately concluded that “[b]ecause 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
3
SVPA to make any future extended commitment for an indeterminate term is not a
retroactive application.” (Id. at p. 1289.)
People v. Whaley involved a different twist on the question of whether the change
in the law regarding SVPA commitments could be applied retroactively. In Whaley, the
People sought to amend the defendant‟s 1999 SVPA commitment, which had been for
two years, and convert it into an indeterminate term under Proposition 83. The trial court
granted the People‟s motion. On appeal, the order was reversed on the ground that
applying Proposition 83 to a term of commitment imposed before its enactment
constituted an impermissible retroactive application of the initiative. (People v. Whaley,
supra, 160 Cal.App.4th at pp. 796-803.) Like the court in Bourquez, the Whaley court
found that “[t]he language of Proposition 83 does not contain an express statement of
retroactivity.” (Whaley, at p. 796.) Furthermore, “[a]lso absent is a clear indication in
the statutory language, or in the voter information guide, that the voters intended an
indeterminate term to be applied retroactively to completed commitment proceedings.”
(Ibid.)
The court considered and rejected various interpretations of the statutory language
and language in the ballot pamphlet advanced by the People to demonstrate an intent for
retroactive application. Significantly, the court was not swayed even by its recognition
“that the electorate‟s intent regarding Proposition 83 was „to strengthen and improve the
laws that punish and control sexual offenders.‟ (Voter Information Guide, Gen. Elec.
[(Nov. 7, 2006)] text of Prop. 83, p. 138.)” (People v. Whaley, supra, 160 Cal.App.4th at
p. 801.)
While neither Bourquez nor Whaley involved the residency restriction enacted by
Proposition 83, Doe v. Schwarzenegger (E.D.Cal. 2007) 476 F.Supp.2d 1178 did. In
Doe, the federal district court held that section 3003.5(b) could not be applied
retroactively to persons convicted of registrable offenses “prior to the effective date of
4
the statute and who were paroled, given probation, or released from incarceration prior to
that date.” (Doe, at p. 1179, fn. 1.) At the outset of its analysis, the district court cited
the settled rule that “it [was] obligated to adopt the interpretation of the law that best
avoids constitutional problems,” and expressed its concern that “reading [Prop. 83]
retroactively would raise serious ex post facto concerns, and the court is obligated to
avoid doing so if it can reasonably construe the statute prospectively.” (Id. at p. 1181.)
Like the courts deciding Bourquez and Whaley, the district court noted that
Proposition 83 “does not expressly address the issue of retroactivity, but it is well-
established in California that statutes operate prospectively unless there is clear evidence
of intent to the contrary.” (Doe v. Schwarzenegger, supra, 476 F.Supp.2d at p. 1181.)
The court concluded “it is not „very clear‟ from extrinsic sources that the intent of the
voters was to make [Prop. 83] retroactive.” (Id. at p. 1182.) The court rejected the state‟s
assertion that language in the ballot pamphlet regarding the number of registered sex
offenders in California, and the intent of the initiative to create predator-free zones,
evinced a clear intention that the initiative be retroactively applied. “First, the reference
to the number of sex offenders in California is a neutral statement of fact, which voters
could have reasonably construed as characterizing the scope of the problem and its
potential expansion, rather than as purporting to address the problem in its entirety.
Second, while the term „predator free zones‟ is troubling, it is not „very clear‟ that it
contemplates retroactive application. Rather, it is the type of sloganeering to be expected
of an argument in favor of the law, not to be taken literally. The [initiative] does not, for
instance, bar sex offenders from entering the 2,000 feet zone around schools or parks; it
only prohibits them from residing there. Accordingly, voters could reasonably interpret
the quoted language as creating a goal of establishing „predator free zones,‟ which the
[initiative] takes one step toward achieving, albeit prospectively.” (Ibid.)
5
In light of this unanimity among the courts that have addressed the retroactivity
issue, the majority opinion‟s conclusion that application of section 3003.5(b) to these
petitioners is prospective rather than retroactive is remarkable. The majority opinion
reaches this conclusion purportedly by examining the “plain language” of section
3003.5(b) under which, it says, “any convicted sex offender already subject to the
lifelong registration requirement who is released from custody on parole, whether it be
after service of a term in custody for an initial sex offense conviction, a new sex offense
conviction, or a new non-sex-offense conviction, becomes subject to the new mandatory
parole residency restrictions for the duration of his parole term. (§ 3003.5(b).)” (Maj.
opn., ante, at p. 13.)
Citing People v. Grant (1999) 20 Cal.4th 150, the majority opinion reasons that
the crucial date for the retroactivity analysis in this case is not the petitioners‟ long ago
convictions of the registrable offenses but the dates of their release on parole from recent,
nonsexual offenses: “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.” (Maj. opn., ante, at p. 15.)
A plain language reading of the statute does not support the majority opinion‟s
result. The statute says simply: “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.” (§ 3003.5, subd. (b).) It does not refer to parole at all, much less bear the weight
of interpretation that the majority opinion would give it — e.g., “any convicted sex
offender already subject to the lifelong registration requirement who is released from
6
custody on parole, whether it be after service of a term in custody for an initial sex
offense conviction, a new sex offense conviction, or a new non-sex-offense conviction,
becomes subject to the new mandatory parole residency restrictions for the duration of
his parole term. (§ 3003.5(b).)” (Maj. opn., ante, at p. 13.)
Indeed, as the majority opinion acknowledges, it is not entirely clear to whom
section 3003.5(b) applies — all registered sex offenders or only those released on parole.
(See maj. opn., ante, at pp. 11-12, & fn. 5.) Enforcement of the residency restriction
against parolees is not mandated by the plain language of the statute; it was an
administrative decision by the California Department of Corrections and Rehabilitation
(CDCR) reached eight months after Proposition 83 was enacted. (See CDCR, Policy No.
07-36: Implementation of Prop. 83, aka Jessica‟s Law (Aug. 17, 2007); Cal. Code Regs.,
tit. 15, § 2616, subd. (a)(15).) Therefore, nothing in the plain language of the statute
supports the majority opinion‟s assertion that section 3003.5(b) was intended to apply
prospectively to parolees upon their release from custody on parole.2
Moreover, the majority opinion‟s characterization of what constitutes the pivotal
date for purposes of retroactivity analysis in this case is simply wrong. These petitioners
did not become subject to the residency restriction when they were released from custody
on parole for nonsexual offenses; they were subject to the residency restriction by virtue
2
The fact that it took eight months for someone to decide how and against whom
section 3003.5(b) was to be enforced also undermines the repeated assertions by the
majority opinion that these petitioners were on notice that the restriction applied to them
as soon as they were released on parole and, even less accurately, the implication that,
armed with this knowledge, they intentionally moved into noncompliant housing. (Maj.
opn., ante, at pp. 13, 17-20.) If those charged with enforcing the residency restriction did
not understand its scope or application until months after it was enacted, how can these
petitioners be charged with notice, actual or constructive, that it applied to them at any
point before they were served with the 45-day compliance letter? They cannot. How can
they have flouted a condition of parole which had not yet been applied to them when they
moved into residences later determined to be noncompliant? They did not — they were
just going home.
7
of their status as registered sex offenders and they acquired that status upon their
convictions for their sex offenses. (See People v. McClellan (1993) 6 Cal.4th 367, 380
[“the sex offender registration requirement . . . is . . . a statutorily mandated element of
punishment for the underlying offense”]; Barrows v. Municipal Court (1970) 1 Cal.3d
821, 825 [§ 290 “applies automatically when a person is convicted of one of the
enumerated offenses” (italics added)].) Indeed, the current registration law in effect
requires eligible offenders to register even before they are released from prison.
(§ 290.016.) Clearly, the registration requirement is imposed upon conviction of the
registrable offense as are all ancillary restrictions that flow from that requirement
including the residency restriction. Therefore, for purposes of the retroactivity analysis
here, the pivotal date is the date of conviction for the registerble offense.
None of the three authorities upon which the majority opinion so heavily relies —
People v. Grant, supra, 20 Cal.4th 190, Bourquez v. Superior Court, supra, 156
Cal.App.4th 1275, and People v. Mills (1992) 6 Cal.App.4th 1278 — compels a different
result because each one is distinguishable.
Grant is factually distinguishable because it involved the violation of a statute —
continuous sexual abuse (§ 288.5, subd. (a)) — in which some events occurred before the
date of the statute‟s effective date but others clearly occurred afterwards. (Grant, supra,
20 Cal.4th at p. 153.) Additionally, the jury was instructed that it could convict the
defendant of the offense 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
8
prohibition against retroactive application of the Penal Code.” (Grant, supra, 20 Cal.4th
at pp. 157-158, first italics added.) In this case, the conduct which is the basis for
application of section 3003.5(b) did not straddle the effective date of Proposition 83.
That conduct which led to petitioners‟ convictions and triggered the registration
requirement occurred long before passage of Proposition 83.
Borquez is also inapposite. As the Court of Appeal observed, pending proceedings
to extend commitment under the SVPA focus on current dangerousness and, therefore,
the change in law that extended commitment indefinitely did not attach new legal
consequences to past conduct. (Borquez v. Superior Court, supra, 156 Cal.App.4th at p.
1289.) In contrast, the residency restriction relates back to the original convictions for
which the petitioners in this case were required to register as sex offenders — therefore,
retroactive application of section 3003.5(b) does “change[ ] the legal consequences of
past conduct by imposing new or different liabilities” (Tapia v. Superior Court, supra, 53
Cal.3d at p. 291) than existed at the time of the convictions.
In Mills, the defendant suffered a 1981 felony conviction for being in possession
of marijuana for sale. In 1990, he was arrested and charged with being a felon in
possession of a firearm — a shotgun. At the time of his 1981 felony conviction,
however, the weapons statute proscribed possession of concealed weapons only. It was
not until 1989 that the statute was amended to prohibit possession of any firearm,
effective in 1990. (People v. Mills, supra, 6 Cal.App.4th at p. 1282.) The defendant
argued that charging him under the amended version of the weapons statute violated the
proscription against ex post facto laws because “the 1990 change in the law increases the
punishment for his 1981 conviction, and is therefore a prohibited ex post facto law.” (Id.,
at p. 1283.)
The Court of Appeal rejected the argument: “Here defendant was convicted of
conduct, his possession of a shotgun occurring after the effective date of the statute. His
9
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.”
(People v. Mills, supra, 6 Cal.App.4th at p. 1286, fn. omitted.) In reaching this
conclusion, the court drew an analogy to habitual offender statutes, noting that “courts
have generally held that a statute which increased the punishment of prior offenders is not
an ex post facto law if it is applied to events occurring after its effective date.” (Ibid.)
Analytically, Mills is distinguishable from the case before us. Crucial to the
court‟s analysis in Mills was the violation by the defendant of a penal statute that was
unrelated to the underlying conduct which had led to his earlier conviction for drug
possession. In other words, the defendant was initially convicted of, and punished for,
possession of a drug for sale. His later conviction was not related to his possession of
marijuana but to his possession of a firearm — two entirely separate events. It is true that
his earlier conviction gave rise to his felon status which then became an element of the
second offense, but he was not being punished for his felon status alone — it was his
status plus conduct that was entirely unrelated to his earlier drug possession. The court‟s
reliance on habitual offender statutes reinforces this point. While conviction for prior
felonies may make an offender eligible for enhanced punishment if he commits a new
crime, the conduct for which the defendant was punished in the earlier conviction is not
the basis for the enhanced punishment for the subsequent conviction.
In this case, however, the residency restriction applies to petitioners for no other
reason than their status as registered sex offenders, which was triggered by the conduct
that led to their convictions of the qualifying sex offenses. The residency restriction has
10
no other object than to increase the legal disabilities imposed upon registered sex
offenders because of their earlier conduct. This is made abundantly clear by Proposition
83‟s statement of purpose: “California 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.” (Prop. 83,
§ 2, subd. (h).) The intent of Proposition 83 was to impose further restrictions on
registered sex offenders based on the conduct that had led to their qualifying convictions.
Thus, the analogy to Mills fails.
Stripped of its analytical garb, the majority opinion‟s analysis is transparently
bare. The majority cannot find either in the plain language of section 3003.5(b) or in the
ballot pamphlet an explicit statement or a clear and unavoidable implication that the
residency restriction was intended to be applied retroactively to individuals like
petitioners whose qualifying offenses for registration purposes occurred long before
Proposition 83 was applied. Instead, the majority dismisses the issue by clinging to the
fiction that release upon parole is the pivotal date for retroactivity analysis and, therefore,
application to these petitioners is prospective.
Ironically, this is the same implausible argument that we unanimously repudiated
in Strauss v. Horton, supra, 46 Cal.4th 364. In Strauss, the interveners argued that
Proposition 8 — banning same-sex marriages in California — applied to such marriages
performed before enactment of the initiative, during the period when same-sex couples
were allowed to marry by virtue of our decision in In re Marriage Cases (2008) 43
Cal.4th 757. The argument advanced by the interveners was that, because Proposition 8
banned same-sex marriages after its enactment “the measure is not being applied
retroactively but rather prospectively, even if the marriages that are now (or in the future
would be) denied recognition were performed prior to the adoption of Proposition 8.”
(Strauss, supra, 46 Cal.4th at p. 471.) We easily saw through this argument: “Were
11
Proposition 8 to be applied to invalidate or to deny recognition to marriages performed
prior to November 5, 2008, 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 law.” (Id. at p. 472.)
In this case, retroactive application of Proposition 83 would clearly “ „ “attach[] a
new disability, in respect to transactions or considerations already past” ‟ ” (Myers,
supra, 28 Cal.4th at p. 839; see Strauss, supra, 46 Cal.4th at pp. 471-472), thus rendering
it retroactive here as application of Proposition 8 would have been in that case. The
majority opinion thereby gives effect to an intent that was nowhere expressed in the
initiative or the ballot pamphlet even if, in the process, our carefully developed
retroactivity jurisprudence is eviscerated. I cannot join in this plain and unjustified
rejection of longstanding retroactivity principles.
II.
Given the majority‟s conclusion on the retroactivity issue, this case will need to be
remanded for further proceedings. As the majority states, the trial courts on remand must
determine the relevant facts necessary to decide petitioners‟ as-applied challenges, which
“would include, but is 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 each particular jurisdiction; and a
complete record of the protocol CDCR is currently following to enforce section
3003.5(b) in those respective jurisdictions.” (Maj. opn., ante, at p. 26.)
12
Also to be considered on remand is the extent to which even moderate safety
restrictions may infringe on the constitutional right to intrastate travel. “The right of
intrastate travel has been recognized as a basic human right protected by article I,
sections 7 and 24 of the California Constitution.” (Tobe v. City of Santa Ana (1995) 9
Cal.4th 1069, 1100.) This right has been elaborated in the context of child custody
disputes where, it has been said, the right to intrastate travel also embraces “the
concomitant right not to travel.” (In re Marriage of McGinnis (1992) 7 Cal.App.4th 473,
480.) “Courts cannot order individuals to move to and live in a community not of their
choosing.” (In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1581.)
The Courts of Appeal have struck down various probation conditions because they
violated the constitutional right to intrastate travel. In In re White (1979) 97 Cal.App.3d
141 the defendant was convicted of prostitution. The trial court imposed a condition of
probation that barred her from entering areas of the city — Fresno — where there was
prostitution activity. The reviewing court struck the condition. The court noted, with
respect to the constitutional issues raised by the defendant that “[w]hile White‟s
reasonable expectations regarding association and travel have necessarily been reduced,
the restriction should be regarded with skepticism. If available alternative means exist
which are less violative of the constitutional right and are narrowly drawn so as to
correlate more closely with the purposes contemplated, those alternatives should be
used.” (Id. at p. 150; see also People v. Beach (1983) 147 Cal.App.3d 612, 622-623;
People v. Bauer (1989) 211 Cal.App.3d 937, 944-945.)
Most recently, in People v. Smith (2007) 152 Cal.App.4th 1245 (Smith), the Court
of Appeal struck down a blanket probation condition imposed on all registered sex
offenders by the Los Angeles probation department that forbid them from leaving the
county for any reason. As the court observed: “Smith has a constitutional right to
intrastate travel [citations] which, although not absolute, may be restricted only as
13
reasonably necessary to further a legitimate governmental interest.” (Id. at p. 1250.) The
court found no such reasonable necessity in that case, concluding, inter alia, that “the
prohibition bears no reasonable relation to the crime.” (Id. at p. 1252.)
We do not consider a probation condition in the present case. But whether section
3003.5(b) is viewed as a parole condition or a condition imposed by statute that extends
beyond parole, the analysis is the same: a restriction on where an ex-offender may live
infringes upon that person‟s right to intrastate travel, which includes as one component
the right to choose where to live and not to live. That right is not absolute, but the
infringement may be imposed “only as reasonably necessary to further a legitimate
governmental interest.” (Smith, supra, 152 Cal.App.4th at p. 1250.)
It is of course true, as the majority points out, that “ „[a]lthough 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.‟ ” (Maj. opn., ante, at p. 27, fn. 10, quoting People v. Burgener
(1986) 41 Cal.3d 505, 531.) As the majority recognizes, however, even if the statute is
interpreted to impose no more than parole conditions, such conditions “ „must be
reasonable, since parolees retain constitutional protection against arbitrary and oppressive
official action.‟ ” (Maj. opn., ante, at p. 27, fn. 10, quoting Terhune v. Superior Court
(1998) 65 Cal.App.4th 864, 874.) The reasonableness of parole conditions is gauged by
the same standard developed in the context of probation conditions in People v.
Dominguez (1967) 256 Cal.App.2d 623, and adopted by this court in People v. Lent
(1975) 15 Cal.3d 418 (Dominguez/Lent). As explained in Dominguez: “A condition of
probation which (1) has no relationship to the crime of which the offender was convicted,
(2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct
which is not reasonably related to future criminality does not serve the statutory ends of
probation and is invalid.” (Dominguez, supra, 256 Cal.App.2d at p. 627; Lent, supra, 15
14
Cal.3d at p. 486.) The Dominguez/Lent criteria applies to evaluating the reasonableness
of parole conditions. (People v. Burgener, supra, 41 Cal.3d at p. 532; People v. Stevens
(2004) 119 Cal.App.4th 1228, 1233; In re Naito (1986) 186 Cal.App.3d 1656, 1661.)
Section 3003.5(b)‟s residency restrictions apply without exception to those who
have committed certain enumerated sex offenses and are required to register as a sex
offender. However, in the case of petitioners K.T. and E.J., there is no indication from
the record that their sexual offenses involved children, and it is unclear why they should
be subject to the statute‟s residency restrictions, which as the majority explains, is for the
purpose of protecting children by “creating „predator free zones around schools and parks
to prevent sex offenders from living near where our children learn and play . . . .‟ ” (Maj.
opn., ante, at p. 5, quoting Voter Information Guide, supra, argument in favor of Prop.
83, at p. 46.) The application of the statute to these two petitioners would appear to be
not merely not in furtherance of the statute‟s goal, but actually contrary to that goal, since
it would divert scarce law enforcement resources toward enforcing a restriction that has
no demonstrable effect on increasing child safety. Nor, if viewed strictly as a parole
condition, would the statutory restriction appear to bear any relationship to the crimes of
which these petitioners were convicted. (See People v. Stevens, supra, 119 Cal.App.4th
at p. 1233.)
On the other hand, petitioner S.P. was convicted of raping a 15-year-old girl when
he was 16. Also, it is unclear whether the Texas sex offense of which petitioner J.S. was
convicted, which has as an element the “ „intent to arouse or gratify the sexual desire of
any person‟ ” involved a minor as an actual or intended or potential victim. (Maj. opn.,
ante, at pp. 8-9.) As to S.P. and possibly to J.S., in order to determine whether the right
to intrastate travel is violated, the severity of the restriction must be determined as well as
whether such severity is justified in furtherance of the statutory goal.
15
It is not the function of courts to judge the wisdom of a statute, but it is their
function to determine its constitutionality. When 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.3 Whether such an outcome
is appropriate for the as-applied challenges in the present case is a matter to be
determined on remand.
MORENO, J.
I CONCUR: KENNARD, J.
3
The restrictions imposed by section 3003.5 (b) may also violate the right to
privacy found in article I, section 1 of the California Constitution. (See Robbins v.
Superior Court (1985) 38 Cal.3d 199, 213-215 [the privacy clause‟s protection of
individual autonomy forbids government from requiring individuals receiving public
assistance benefits to give up their homes and live in county facilities].)
16
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re E. J. on Habeas Corpus
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S156933
Date Filed: February 1, 2010
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Attorneys for Appellant:
Prison Law Office, Donald Specter, Vibeke Norgaard Martin, Rachel Farbiarz; Rosen, Bien & Galvan, Ernest
Galvan, Nura Maznavi, Loren Stewart and Shirley Huey for Petitioners.
Law Offices of Edward Baum and Edward Baum as Amici Curiae on behalf of Petitioners.
Christina Allbright for California Coalition on Sexual Offending and The Association for the Treatment of Sexual
Abusers as Amici Curiae on behalf of Petitioners.
Alan L. Schlosser and Michael T. Risher for American Civil Liberties Union of Northern California as Amici Curiae
on behalf of Petitioners.
Gary Steven Bowman, in pro. per., as Amici Curiae on behalf of Petitioners.
Robert Jacob Goldenflame, in pro. per., as Amici Curiae on behalf of Petitioners.
__________________________________________________________________________________
Attorneys for Respondent:
Mennemeier, Glassman & Stroud, Kenneth C. Mennemeier and Kelcie M. Gosling for Respondent Secretary of the
California Department of Corrections and Rehabilitation.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Ernest Galvan
Rosen, Bien & Galvan
315 Montgomery Street, 10th Floor
San Francisco, CA 94104
9415) 433-6830
Kenneth C. Mennemeier
Mennemeier, Glassman & Stroud
980 9th Street, Suite 1700
Sacramento, CA 95814-2736
(916) 553-4000
The court issued an order to show cause why the petitioner is not entitled to relief from the residency restrictions imposed by Penal Code section 3003.5 on persons required to register as sex offenders, on the ground the statute violates the ex post facto clauses of the state and federal Constitutions, has been impermissibly retroactively applied, constitutes an unreasonable parole condition, impinges on the petitioner's substantive due process rights, and is unconstitutionally vague.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 02/01/2010 | 47 Cal. 4th 1258, 223 P.3d 31, 104 Cal. Rptr. 3d 165 | S156933 | Original Proceeding - Habeas | submitted/opinion due | IN RE A.G. (S173646) |
Parties
| 1 | J., E. (Petitioner) Represented by Rachel Abi Farbiarz Prison Law Office 1917 Fifth Street Berkeley, CA |
| 2 | J., E. (Petitioner) Represented by Ernest James Galvan Rosen Bien & Galvan, LLP 315 Montgomery Street, 10th Floor San Francisco, CA |
| 3 | J., E. (Petitioner) Represented by Fathima Nura Maznavi Rosen Bien & Galvan, LLP 315 Montgomery Street, 10th Floor San Francisco, CA |
| 4 | J., E. (Petitioner) Represented by Vibeke Norgaard Prison Law Office 1917 Fifth Street Berkeley, CA |
| 5 | J., E. (Petitioner) Represented by Loren Grey Stewart Rosen Bien & Galvan, LLP 315 Montgomery Street, 10th Floor San Francisco, CA |
| 6 | J., E. (Petitioner) Represented by Donald Specter Prison Law Office 1917 Fifth Street Berkeley, CA |
| 7 | P., S. (Petitioner) Represented by Ernest James Galvan Rosen Bien & Galvan, LLP 315 Montgomery Street, 10th Floor San Francisco, CA |
| 8 | P., S. (Petitioner) Represented by Donald Specter Prison Law Office 1917 Fifth Street Berkeley, CA |
| 9 | S., J. (Petitioner) Represented by Ernest James Galvan Rosen Bien & Galvan, LLP 315 Montgomery Street, 10th Floor San Francisco, CA |
| 10 | S., J. (Petitioner) Represented by Donald Specter Prison Law Office 1917 Fifth Street Berkeley, CA |
| 11 | T., K. (Petitioner) Represented by Ernest James Galvan Rosen Bien & Galvan, LLP 315 Montgomery Street, 10th Floor San Francisco, CA |
| 12 | T., K. (Petitioner) Represented by Donald Specter Prison Law Office 1917 Fifth Street Berkeley, CA |
| 13 | Department of Corrections & Rehabilitation (Non-Title Respondent) Represented by Rochelle Corinne East Office of the Attorney General/Correctional Law Section 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 14 | Department of Corrections & Rehabilitation (Non-Title Respondent) Represented by Gerald A. Engler Office of the Attorney General 455 Golden Gate Avenue, Room 11000 San Francisco, CA |
| 15 | Department of Corrections & Rehabilitation (Non-Title Respondent) Represented by Kenneth C. Mennemeier Mennemeier Glassman et al. 980 Ninth Street, Suite 1700 Sacramento, CA |
| 16 | Tilton, James (Non-Title Respondent) Represented by Kelcie Montgomery Gosling Mennemeier Glassman et al. 980 Ninth Street, Suite 1700 Sacramento, CA |
| 17 | Tilton, James (Non-Title Respondent) Represented by Kenneth C. Mennemeier Mennemeier Glassman et al. 980 Ninth Street, Suite 1700 Sacramento, CA |
| 18 | ACLU Foundation of Northern California, Inc. (Amicus curiae) Represented by Michael Temple Risher ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA |
| 19 | Association for the Treatment of Substance Abusers (Amicus curiae) Represented by Christina June Allbright Humboldt County Public Defender 1001 Fourth Street Eureka, CA |
| 20 | Baum, Renee (Amicus curiae) Represented by Edward Baum Law Offices of Baum & Baum 555 S. Sunrise, Suite 200 Palm Springs, CA |
| 21 | Bowman, Gary Steven (Amicus curiae) Deuel Vocational Institution P. O. Box 600 Tracy, CA 95378 |
| 22 | California Coalition on Sexual Offending (Amicus curiae) Represented by Christina June Allbright Humboldt County Public Defender 1001 Fourth Street Eureka, CA |
| 23 | Goldenflame, Robert Jacob (Amicus curiae) 765 Geary Street, Apt. 409 San Francisco, CA 91409 |
| Opinion Authors | |
| Opinion | Justice Marvin R. Baxter |
| Concur | Justice Kathryn M. Werdegar |
| Dissent | Justice Carlos R. Moreno |
| Dockets | |
| Oct 4 2007 | Petition for writ of habeas corpus filed E.J., et al., Petitioners by Ernest Galvan, Counsel |
| Oct 4 2007 | Exhibit(s) lodged |
| Oct 4 2007 | Motion to file document under seal (non-AA) |
| Oct 4 2007 | Filed: |
| Oct 5 2007 | Stay application filed (separate petition pending - crim.) E.J et al., petitioners by Donald Specter, counsel |
| Oct 10 2007 | Stay order filed Pending final determination by this Court of the petition for writ of habeas corpus filed herein, enforcement of the residency restrictions of Penal Code section 3003.5 against petitioners E.J., S.P., J.S., and K.T. is hereby stayed. |
| Oct 10 2007 | Informal response requested from S.F. A.G. Due 10/24. No extensions. May be faxed with hard copy to follow. 7 days for reply. |
| Oct 12 2007 | Filed: Amended Petition for Writ of Habeas Corpus - Immediate Action Requested |
| Oct 12 2007 | Motion to file document under seal (non-AA) |
| Oct 15 2007 | Received: Proof of Service on the Attorney General (Rochelle C. East, Supervising Deputy A.G.) by Rosen, Bien & Galvan, LLP, counsel for petitioners. |
| Oct 15 2007 | Application for stay denied Petitioners' "Application for Further Stay of California Department of Corrections Policy No. 07-36," seeking to stay enforcement of Penal Code section 3003.5 as to all parolees required to register under Penal Code section 290, is denied without prejudice to the filing of an action for declaratory and injunctive relief in an appropriate superior court. (See Conover v. Hall (1974) 11 Cal.3d 842, 850; Portnoy v. Superior Court (1942) 20 Cal.2d 375, 378.) |
| Oct 17 2007 | Received: Letter dated 10-17-2007 from Gerald A. Engler, Senior Assistant Attorney General, advising that Respondent James Tilton, Secretary of CDCR, is represented by: Kenneth Mennemeier, Kelcie Gosling, Menneier, Glassman and Stroud |
| Oct 24 2007 | Informal response filed Respondent James Tilton, Secretary, California Dept. of Corrections and Rehabilitation by Kenneth C. Mennemeier, Mennemeier, Glassman & Stroud, LLP, counsel. (Faxed Copy) |
| Oct 29 2007 | Informal response filed Respondent James Tilton, Secretary, C.D.C.R., by Kenneth C. Mennemeier, counsel (Hard Copy) |
| Oct 31 2007 | Received: Letter dated 10-31-2007 from Alan L. Schlosser, ACLU - Northern California. |
| Oct 31 2007 | Reply to informal response filed E.J., et al., Petitioners by Ernest Galvan, counsel |
| Nov 1 2007 | Reply to informal response filed E.J., et al., Petitioners by Ernest Galvan, Prison Law Office, Rosen Bien & Galvan, LLP, counsel (Hard Copies) |
| Nov 1 2007 | Order filed The order filed on October 10, 2007, staying enforcement of the residency restrictions of Penal Code section 3003.5 against petitioners E.J., S.P., J.S., and K.T. is amended to include the additional Supreme Court numbers reflected above. |
| Nov 1 2007 | Order filed The order filed on October 15, 2007, denying the "Application for Further Stay of California Department of Corrections Policy No. 07-36," without prejudice to the filing of an action for declaratory and injunctive relief in an appropriate superior court, is amended to include the additional Supreme Court numbers reflected above. |
| Dec 12 2007 | Order to show cause issued The Director of the Department of Corrections and Rehabilitation is ordered to show cause before this court, when the matter is ordered on calendar, why petitioner is not entitled to the relief requested. The return is to be filed on or before January 11, 2008. The motions to seal, filed October 4, 2007 and October 12, 2007, are GRANTED. The motion to amend the writ of habeas corpus is denied without prejudice to the filing of an original petition in the appropriate trial court. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Jan 3 2008 | Request for extension of time filed Secretary of the California Department of Corrections and Rehabilitation by Kenneth C. Mennemeier, counsel (requesting a 31-day extension to Feb. 11, 2008, to file return to the order to show cause) |
| Jan 4 2008 | Opposition filed Opposition to Respondent's Application for Extension of Time to File Return E.J., petitioner Ernest Galvan, counsel (original oppo to follow) |
| Jan 7 2008 | Received: (Original) Petitioners' Opposition to Respondent's Application for Extension of Time |
| Jan 10 2008 | Extension of time granted On application of respondent Secretary of the California Department of Corrections and Rehabilitation and good cause appearing, it is ordered that the time to serve and file the return to the order to show cause is extended to and including February 11, 2008. |
| Jan 10 2008 | Received application to file Amicus Curiae Brief Renee Baum, Esq., Trustee of The S. Intervivos Trust, and W.J.S. in support of all petitioners by Edward Baum, Esq. |
| Jan 18 2008 | Permission to file amicus curiae brief granted The application of Renee Baum, Esq., Trustee of the S. Intervivos Trust, and W.J.S. for permission to file an amicus curiae brief in support of petitioners is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Jan 18 2008 | Amicus curiae brief filed Renee Baum, Esq., Trustee of the S. Intervivos Trust, and W.J.S., By Edward Baum, Counsel Answer is due within 20 days. |
| Jan 28 2008 | Filed: Respondent Secretary of the California Department of Corrections & Rehabilitation's Request to file a combined answer to the amicus curiae brief and return to the order to show cause by Kenneth C. Mennemeier, counsel |
| Jan 28 2008 | Request for extension of time filed to and including February 11, 20008 to file Respondent Secretary of the California Department of Corrections and Rehabilitation's answer to the amicus curiae brief by Kenneth C. Mennemeier, counsel. |
| Feb 1 2008 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file a consolidated answer to amicus curiae brief and to the return is extended to and including February 11, 2008. |
| Feb 11 2008 | Written return filed by the California Department of Corrections and Rehabilitation, respondent by Kenneth C. Mennemeier, Counsel |
| Mar 7 2008 | Received application to file Amicus Curiae Brief Amici Curiae The California Coalition on Sexual Offending and The Association for the Treatment of Sexual Abusers in support of petitioners by Christina Allbright, counsel |
| Mar 11 2008 | Motion to file document under seal (non-AA) Petitioners' Application to file documents under seal and for protective order; memorandum of points and authorities in support thereof (CRC rule 8.160(e)) Declarations of M.M., J.T., and D.B. to be filed under seal in support of petitioners' traverse and exception to the return, Vol. II (Conditionally Under Seal) -- Sealed Envelope |
| Mar 11 2008 | Reply to return filed E. J., petitioner by Donald Specter, Prison Law Office |
| Mar 11 2008 | Exhibit(s) lodged Petitioner's Vol. III, Exhibits O-R, in support of Petitioner's Traverse and Exception to the Return by Donald Specter, Prison Law Office, counsel |
| Mar 11 2008 | Received application to file Amicus Curiae Brief American Civil Liberties Union in support of Petitioners, by Michael T. Risher, Counsel |
| Mar 18 2008 | Permission to file amicus curiae brief granted The application of California Coalition of Sexual Offending and The Association for the Treatment of Sexual Abusers for permission to file amici curiae brief in support of petitioners is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Mar 18 2008 | Amicus curiae brief filed Amici Curiae California Coalition of Sexual Offending and The Association for the Treatment of Sexual Abusers in support of petitioners. |
| Mar 18 2008 | Permission to file amicus curiae brief granted The application of American Civil Liberties Union of Northern California for permission to file an amicus curiae brief in support of petitioners is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Mar 18 2008 | Amicus curiae brief filed American Civil Liberties Union of Northern California in support of petitioners |
| Apr 1 2008 | Request for extension of time filed to and including May 7, 2008, to file Respondent California Dept of Corrections and Rehabilitation's consolidated answer brief to the amici curiae briefs by Kenneth C. Mennemeier, counsel |
| Apr 7 2008 | Extension of time granted On application of Respondent and good cause appearing, it is ordered that the time to serve and file a single, consolidated answer to the amici curiae briefs is extended to and including May 7, 2008 |
| Apr 9 2008 | Motion to file document under seal granted Petitioners' application to file documents under seal and for a protective order is granted. Petitioners' declarations are ordered sealed because disclosure of identifying information could compromise the safety of petitioners and their families. The court finds that an overriding interest overcomes the right of public access to the record; there is a substantial probability the overriding interest will be prejudiced if the record is not sealed; the sealing is narrowly tailored; and no less restrictive means exist to achieve the overriding interest. (Cal. Rules of Court, rule 2.550.) The parties are prohibited from disclosing the contents of the sealed materials in any subsequently filed records or papers in this matter. (Cal. Rules of Court, rule 8.160.) |
| May 7 2008 | Request for extension of time filed to and including May 21, 2008, within which to file Respondent's Combined Answer to the Amici Curiae Briefs Mennemeier, Glassman & Stroud, Attorneys for the California Department of Corrections and Rehabilitation |
| May 8 2008 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file a single, consolidated answer to the amici curiae briefs is extended to and including May 21, 2008. |
| May 21 2008 | Response to amicus curiae brief filed CONSOLIDATED ANSWER, by atty Kenneth C. Mennemeier, on behalf of respondent Department of Corrections and Rehabilitation, in response to the amicus curiae briefs filed by 1) the Calif. Coalition on Sexual Offending and the the Association for the Treatment of Sexual Abusers, and 2) the American Civil Liberties Union of Northern California. |
| Jun 5 2008 | Change of contact information filed for: Prison Law Office, 1917 Fifth Street, Berkeley, CA 94710 Telephone: (510) 289-2621 // Fax: (510) 280-2704 by: Donald Specter, retained counsel |
| Jun 5 2008 | Change of contact information filed for: Prison Law Office, 1917 Fifth Street, Berkeley, CA 94710 Telephone: (510) 280-2621 // Fax: (510) 280-2704 by: Donald Specter, retained counsel |
| Nov 7 2008 | Received application to file Amicus Curiae Brief Pro per Gary Steven Bowman in support of petitioners, With separate request for judicial notice |
| Nov 12 2008 | Permission to file amicus curiae brief granted The application of Gary Steven Bowman for permission to file an amicus curiae brief in support of petitioners is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Nov 12 2008 | Amicus curiae brief filed by Gary Steven Bowman in support of petitioners, in pro per. |
| Nov 12 2008 | Request for judicial notice filed (granted case) Gary Steven Bowman, amicus curiae |
| Nov 21 2008 | Received: Amicus Curiae Gary Steven Bowman's Memorandum of Points and Authorities |
| Dec 1 2008 | Received: Letter from Amicus Gary Steven Bowman with three separate documents attached, as follows: 1) Letter of explanation in regards to service of respondents and petitioners 2) Request permission to present oral arguments 3) Request for Judicial Notice Copies provided to all parties. |
| Dec 8 2008 | Received: Amicus Gary S. Bowman's motion to amend amicus curiae brief. (Change of address noted herein.) |
| Dec 8 2008 | Change of contact information filed for: Amicus Gary Steven Bowman at 125 Parmac Road #25, Chico, CA 95926 and noted herein. |
| Dec 9 2008 | Received: Amicus Gary Bowman's Request to Withdraw Motion to Amend Amicus Curiae Brief. (Change of address noted in transmittal letter.) |
| Dec 10 2008 | Application denied The application of Gary Bowman for permission to amend his amicus curiae brief is hereby denied. |
| Dec 26 2008 | Change of contact information filed for: Gary Bowman at Deuel Vocational Instition and noted herein. |
| May 18 2009 | Application to file amicus curiae brief filed Application of Amicus Curiae Robert Jacob Goldenflame, in pro per, in support of petition for writ of habeas corpus. |
| Jun 3 2009 | Permission to file amicus curiae brief granted The application of Robert Jacob Goldenflame for permission to file an amicus curiae brief in support of petitioners is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief. |
| Jun 3 2009 | Amicus curiae brief filed Amicus curiae: Goldenflame, Robert JacobPro Per Answer is due within 20 days. |
| Jul 15 2009 | Request for judicial notice denied Amicus curiae Gary Steven Bowman's requests for judicial notice and for judicial review of the facts are denied. (Evid. Code, ? 450 et. seq.) Amicus curiae's motion for oral argument is also denied. (Cal. Rules of Ct., rule 8.524(g).) George, C.J., was absent and did not participate. |
| Oct 1 2009 | Case consolidated with: S157631 - S.P. on H.C. S157633 - J.S. on H.C. S157634 - K.T. on H.C. |
| Oct 1 2009 | Case ordered on calendar to be argued Tuesday, November 3, 2009, at 1:30 p.m., in Berkeley |
| Oct 14 2009 | Request for extended media coverage filed by The California Channel. |
| Oct 16 2009 | Request for extended media coverage granted The request for extended media coverage, filed by The California Channel on October 14, 2009, is granted subject to the conditions set forth in rule 1.150, California Rules of Court. |
| Oct 23 2009 | Supplemental brief filed Petitioner: P., S.Attorney: Donald Specter Attorney: Ernest James Galvan Petitioner: T., K.Attorney: Donald Specter Attorney: Ernest James Galvan Petitioner: S., J.Attorney: Donald Specter Attorney: Ernest James Galvan Petitioner: J., E.Attorney: Donald Specter Attorney: Ernest James Galvan Petitioners' |
| Oct 23 2009 | Received: Petitioners' Supplemental Supporting Documents (Vol. IV -- Exhibits S-V) Donald Spector, Prison Law Office and Ernest Galvan, Rosen Bien & Galvan, LLP |
| Nov 3 2009 | Request for extended media coverage filed for Associated Press |
| Nov 3 2009 | Request for extended media coverage granted The request for extended media coverage (still camera photography), filed by the Associated Press on November 2, 2009, is granted subject to the conditions set forth in rule 1.150, California Rules of Court. |
| Nov 3 2009 | Cause argued and submitted |
| Jan 29 2010 | Notice of forthcoming opinion posted To be filed Monday, February 1, 2010 @ 10 a.m. |
| Briefs | |
| Jan 18 2008 | Amicus curiae brief filed |
| Feb 11 2008 | Written return filed |
| Mar 11 2008 | Reply to return filed |
| Mar 18 2008 | Amicus curiae brief filed |
| Mar 18 2008 | Amicus curiae brief filed |
| May 21 2008 | Response to amicus curiae brief filed |
| Nov 12 2008 | Amicus curiae brief filed |
| Jun 3 2009 | Amicus curiae brief filed Amicus curiae: Goldenflame, Robert JacobPro Per |
| Brief Downloads | |
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| Jan 24, 2011 Annotated by cborthwick | Facts: Voters in California enacted Proposition 83, the Sexual Predator Punishment and Control Act: Jessica’s Law on November 7, 2006. Prop. 83 modified CAL. PENAL CODE § 3003.5, which set forth restrictions for where people registered as sex offenders under CAL. PENAL CODE § 290(b) could live. Prop. 83 prohibited registered sex offenders from taking up residence “within 2000 feet of any public or private school, or park where children regularly gather.” Procedural Posture: Issues: Holdings: Disposition: Analysis: The mandatory, more restrictive housing requirements under § 3003.5 apply to “any person for whom registration is required pursuant to Section 290.” Here, the heightened residency restrictions of § 3003.5 applied to the petitioners because they were released on parole for a new, non-sex offense after Prop. 83’s effective date. Issue (1): Issue (2): Issue (3): Concurrence (Werdegar, J.): Dissent (Moreno, J.): Tags: sex offender, registration, the Sexual Predator Punishment and Control Act, CAL. PENAL CODE § 290(b), CAL. PENAL CODE § 3003.5, Proposition 83, Jessica’s Law, retroactive, retroactivity, ex post facto Table of Key Authorities: CAL. PENAL CODE § 290: http://law.justia.com/california/codes/2009/pen/290-294.html CAL. PENAL CODE § 3003.5: http://law.justia.com/california/codes/2009/pen/3000-3007.html People v. Grant, 20 Cal.4th 150 (1999): http://scholar.google.com/scholar_case?case=14760131567331932089&q=peopl... Bourquez v. Superior Court, 156 Cal.App.4th 1275 (2007): http://scholar.google.com/scholar_case?case=18194293761229647065&q=bourq... People v. Mills, 6 Cal.App.4th 1278 (1992): http://scholar.google.com/scholar_case?case=9863917411840606103&q=people... Strauss v. Horton, 46 Cal.4th 364 (2009): http://scholar.google.com/scholar_case?case=1933184769513157018&q=straus... In re Ramirez, 39 Cal.3d 932 (1985): http://scholar.google.com/scholar_case?case=10383387170337635798&q=in+re... |
| Jan 24, 2011 Annotated by cborthwick | Annotation By: Claire Borthwick |
| Related Media | ACLU of Northern California |
