Metropolitan News-Enterprise


Tuesday, March 3, 2015


Page 1


S.C. Rejects Blanket Restrictions on Sex Offender Residency


From Staff and Wire Service Reports


The state Supreme Court yesterday unanimously ruled that corrections officials cannot prohibit all registered sex offenders from living within 2,000 feet of a school or park as required by a 2006 voter-approved ballot measure.

The court restricted its analysis and decision to San Diego County, where four parolees brought habeas corpus petitions challenging enforcement of part of Proposition 83—also known as Jessica’s Law—and prevailed in the lower courts. But the ruling has potential statewide impact.

“Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety,” retired Justice Marvin Baxter, sitting on assignment, wrote for the court. “It thus has infringed their liberty and privacy interests, however limited, while bearing no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators, and has violated their basic constitutional right to be free of unreasonable, arbitrary, and oppressive official action.”

Independent Authority

Baxter pointed out, however, that the California Department of Corrections & Rehabilitation has statutory authority, independent of Proposition 83, to impose reasonable restrictions on where parolees may live, and that in some instances those may be even stricter than the initiative’s. But they must be imposed on case-by-case basis, the jurist said.

Deborah Hoffman, a spokeswoman for CDCR, said the agency was reviewing the decision.

Supporters of Jessica’s Law say the residency provision keeps children safe from sexual predators. But opponents say it forces offenders onto the street or away from their families, creating hardships that make them more likely to reoffend.

San Diego Superior Court Judge Michael Wellington, following an evidentiary hearing ordered by the Supreme Court, ruled in 2011 that the law violated the three men and one woman’s right to intrastate travel, to establish a home and maintain their privacy and was not specifically tailored to each of their circumstances. The court ordered the CDCR to stop applying the residency restriction as a blanket provision against all paroled registered sex offenders who were under supervision in San Diego County, and the Fourth District Court of Appeal affirmed.

In a separate ruling yesterday, the court said the residency restrictions on sex offenders did not constitute punishment. The justices rejecting a defendant’s claim that his constitutional right to a jury trial was violated when a Superior Court judge exercised his discretion to require the defendant to register as a sex offender, and thus made him subject to the Jessica’s Law residency restrictions, because the jury did not convict him of a sex crime and the judge relied on his own factfinding to determine that the offense was sex-related.

Assault Conviction

The defendant, Steven Mosley, was acquitted of child molestation but convicted of the lesser offense of simple assault. Requiring him to register and adhere to the residency restrictions, he argued, was inconsistent with the line of Supreme Court cases beginning with Apprendi v. New Jersey (2000) 530 U.S. 466, barring punishment in excess of what would otherwise be the statutory maximum based on facts not found by a jury.

Sex offender registration mandates are not traditional punishments, Baxter explained, but “are relatively modern attempts to address, by means short of secure confinement, the persistent problem of recidivism among sex offenders, particularly as it endangers the most vulnerable potential victims.”

He continued:

”A requirement that a jury make all findings necessary to allow a judge to impose a sex offender registration requirement, with any attendant residency restrictions, would interfere with these efforts by creating practical difficulties similar to those cited in Ice itself.  Under California’s scheme for discretionary imposition of sex offender registration, the necessary predicate findings—in particular, the defendant’s likelihood of reoffense—are not of a kind typically determined by a jury when considering the basic elements of a discrete criminal charge.”

Baxter was joined by Chief Justice Tani Cantil-Sakauye, Justices Carol Corrigan and Ming Chin, and Sixth District Court of Appeal Justice Adrienne Grover, sitting on assignment.

Justice Goodwin H. Liu, joined by Justice Kathryn M. Werdegar, argued in dissent that while the registration requirement is not punitive, the residency restrictions are.

“Although [Penal Code] section 3003.5(b)’s nonpunitive purpose of protecting children is not a sham or pretext for imposing punishment, the residency restriction is plainly excessive with respect to that purpose,” Liu wrote.   “The most conspicuous feature of section 3003.5(b) in this regard is its categorical applicability to all registered sex offenders—regardless of whether the offender ever targeted children, regardless of whether the offense was violent or nonviolent, regardless of risk profile.”

The cases are In re Taylor, 15 S.O.S. 1204, and People v. Mosley, 15 S.O.S. 1189.


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