Metropolitan News-Enterprise


Thursday, November 20, 2008


Page 1


Jury Must Find Facts for Sex Offender Residency Restriction—C.A.


By STEVEN M. ELLIS, Staff Writer


An order requiring a defendant to register as a sex offender subject to Jessica’s Law’s restriction on residency within 2,000 feet of a school or park where children gather must be based on facts found by a jury, the Fourth District Court of Appeal ruled yesterday.

Holding that the restriction is a penalty, and noting that any fact increasing a criminal penalty beyond the statutory maximum must be proven to a jury beyond a reasonable doubt, Div. Three ruled that a trial court violated the constitutional rights of a man convicted of assault after a jury acquitted him on a sexual assault charge when the court ordered him to register as a sex offender based on judicial factfinding.

Steven Lloyd Mosley found himself at the intersection of two topical, controversial legal issues—sex offender registration and right to a jury trial—after he was accused of committing a lewd act on a minor.

Despite testimony by the alleged victim, her two brothers and her grandmother, a jury found Mosley guilty only of misdemeanor assault and Orange Superior Court Judge David A. Hoffer sentenced him to serve six months in jail, with full credit for time served.

Judicial Factfinding

Hoffer then ordered Mosley to register as a sex offender, finding that “the evidence established beyond a reasonable doubt that the defendant sexually assaulted the victim,” and concluding that the assault was “committed as a result of sexual compulsion or for purposes of sexual gratification.”

Under California’s sex offender registration laws, a judge has discretion to order sex offender registration for a person convicted of “any offense” if the court makes such a finding, and California voters in 2006 approved Jessica’s Law, broadening the definition of certain offenses, increasing penalties, and imposing the residency requirement.

However, in recent years the U.S. Supreme Court has revitalized the right to a jury trial, culminating in decisions striking down federal sentencing guidelines in 2005 and California’s determinate sentencing law in 2007, and generally providing that juries, not judges, must determine any additional facts necessary to impose punishment beyond that otherwise provided by statute based solely on the jury’s verdict.

Burden Challenged

On appeal, Mosley challenged only the sex offender registration requirement, basing his claims on the “‘substantial’ and ‘onerous’” burden of lifetime registration under California law, including Jessica’s Law’s residency restriction, and the court, in an opinion by Justice Raymond J. Ikola, agreed that the restriction triggered the right to a jury trial.

“By itself, registration is ‘regulatory’ and ‘remedial,’ not punitive…,” Ikola wrote. “But Jessica’s Law increased punitive effect of sex offender registration by imposing a residency restriction... potentially banishing [registrants] from whole neighborhoods or even entire cities.”

“Jessica’s Law survives this opinion untouched. We note only that its residency restriction increases penalty for the underlying offense beyond statutory maximum, and so the facts supporting sex offender registration must be found beyond a reasonable doubt by a jury. Imposing a residency restriction based on judicial factfinding violates the right to a jury trial as construed by the U.S. Supreme Court.”

Justices Kathleen O’Leary and Eileen C. Moore joined Ikola in his opinion.

The case is People v. Moseley, G038379.


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