Metropolitan News-Enterprise


Tuesday, January 10, 2023


Page 1


Court of Appeal:

Release of Sex Offender Into Community Is Blocked

Opinion Says Setting Up of Home Schooling Within a Quarter Mile of Proposed Residence of Man Who Raped 15-Year-Old Girl Suffices for Purpose of Statute Barring Release Near ‘Public or Private School’


By a MetNews Staff Writer


The release of a sexually violent offender into a community following an involuntary hospital confinement after he served his prison sentence can be blocked by setting up the home schooling of children within close proximity to where the former inmate is scheduled to reside, the Sixth District Court of Appeal has declared, over a dissent.

At issue is Welfare & Institutions Code §6608.5(f) which provides that “a person released under this section shall not be placed within one-quarter mile of any public or private school providing instruction in kindergarten or any of grades 1 to 12, inclusive” if either of two conditions exist, one of which is “that the person has a history of improper sexual conduct with children.”

Michael Thomas Cheek had such a history. In 1981, he raped a 15-year-old girl after he escaped from prison where he was sent after committing kidnapping, rape, and forcible oral copulation in 1980.

Santa Cruz Superior Court Judge Syda K. Cogliati on Nov. 15, 2021, approved the release of Cheek to a residence in Bonny Doon, located about 10 miles north of the City of Santa Cruz, spurning the protest of the Bonny Doon School District. An elementary school is in the vicinity of where Cheek would reside, but it is about one mile away.

Matter of Timing

Cogliati rejected the contention that the release must be blocked in light of the home-schooling within a quarter of a mile of the proposed residence, as shown by affidavits, because, he pointed out, it was established after a statutorily required notice of the proposed release was sent to local residents.

The Sixth District on Friday ordered issuance of peremptory writ of mandate requiring that Cheek not be released, as planned. Justice Adrienne Grover said, in an opinion joined in by Presiding Justice Mary J. Greenwood:

“[T]he statute prohibiting placement of certain sexually violent predators near a school does not require the school to have been operating for any particular time. Nor does the statute contain any language preventing its application to schools operating in a home.”

She elaborated that there is nothing in the language of the statute “that can be construed to require that the school be planned or in existence before notice of an offender’s placement,” adding:

“The Legislature could have prescribed that a school exist at the time notice of placement is given to the community, but it did not. We have no authority to insert that requirement ourselves. Imposing a specific requirement not found in the text goes beyond interpreting the statute. It would amount to rewriting it, which we cannot do.”

Separate View

The real parties in interest—Cheek and the Department of State Hospitals—had their own take on why the order should stand. When the Legislature referred to a “school” in §6608.5(f), they maintained, it had in mind “traditional schools.”

Greenwood responded:

“The only requirement in the statute is that the school provide instruction in kindergarten or grades 1 to 12. Based on the plain text of the statute, the school here qualifies because it provides instruction in the specified grades.

“To do what real parties in interest ask and exclude from the statute private schools operating from a home would require us to add a material term not found in the text. For the same reasons we cannot rewrite the statute to require that the school exist at the time notice is given to the community, we cannot rewrite it to exclude schools that operate in a home.”

Lie’s Dissent

Justice Cynthia C. Lie dissented, saying:

“[B]ecause I consider the majority’s definition of ‘any public or private school’ as encompassing any private home in which the residents elect to home school their children to be inconsistent with both the plain language of the statute and the Legislature’s balancing of competing interests, I respectfully dissent.”

She explained:

“The lawfulness of the statutory scheme requires balancing, on the one hand, the due process imperative presented by a years-old determination of Cheek’s eligibility for release to the county of his domicile, and the safety concerns of a foreseeably incensed and fearful community, on the other. As the superior court here recognized, enabling the tactical filing of home-schooling affidavits only maximizes the likelihood of Cheek’s release as a transient on conditions the community as a whole will find less satisfactory.”

The case is People v. Superior Court (Cheek), 2023 S.O.S. 98.


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