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Court of Appeal:
Predator May Be Housed Next to Home Where Minor Schools
Opinion Says Independent Study Program Does Not Transform Residence Into Education Center for Purposes of Bar on Conditionally Releasing Sexually Violent Child Abusers to Placements Near Learning Institutions
By Kimber Cooley, associate editor
The Fifth District Court of Appeal has held that a sexually violent predator with a history of targeting children may be conditionally released to a residence next door to a home where a minor is schooled, finding that the child’s enrollment in an independent study program through a nearby public charter institution does not transform the house into a “school” for purposes of a statutory bar on placing abusers near education centers.
At issue are provisions in the Welfare and Institutions Code governing the housing of designated “sexually violent predators” (“SVPs”). Under the statutory scheme, found at §6600 et seq., a person convicted of certain sex crimes is subject to involuntary commitment following release from prison if a diagnosed mental disorder makes it likely that the person will continue to engage in the prohibited behavior.
Following an annual examination, if a court determines that the offender remains an SVP but can be treated in a less restrictive setting, the patient may be conditionally released to the community under the supervision of the Department of State Hospitals.
Statutory Ban
Under §6608.5(f), an SVP with a “history of improper sexual conduct with children” may not “be placed within one-quarter mile of any public or private school providing instruction in kindergarten or any of grades 1 to 12.”
A divided panel of the Sixth District Court of Appeal held in the 2023 case of People v. Superior Court of Santa Cruz (Cheek) that §6608(f)’s placement restriction covered a private homeschool, offering education exclusively to the residents’ children.
In Tuesday’s opinion, authored by Acting Presiding Justice Jennifer R.S. Detjen and joined in by Justices Donald R. Franson Jr. and Kathleen Meehan, the Fifth District declined to expand the rule to cover homeschooled children utilizing the independent study offerings of a neighborhood public charter school. Detjen wrote:
“[I]ndependent study is a ‘program,’ not a type of ‘school.’…Indeed, nothing in the Education Code suggests that the location where independent study occurs—which is entirely at the discretion of the student and may change at any time…—constitutes a school. Thus, unlike in Cheek, we are not faced with the question of whether an otherwise legally recognized school should be excluded from the section 6608.5, subdivision (f) placement restriction. Rather, we are faced with the question of whether a location should be considered a school for purposes of section 6608.5, subdivision (f), even if it is not considered a school for purposes of the Education Code.”
Conditional Release
The question arose after Kevin Gray—who was convicted of four separate sex crimes against children aged 11 and younger between 1974 and 1992 and admitted to molesting approximately 50 others—was ordered conditionally released from the state hospital program in 2024. An annual evaluation determined that he “is likely to engage in future predatory sexually violent criminal behavior” but that he could be suitably treated in the community.
After an extensive search that covered eight counties, a residence located in Turlock was proposed as suitable housing. On June 26, the Stanislaus District Attorney’s Office opposed the placement, arguing that the location ran afoul of §6608(f) because the next-door neighbor, Erica Farmer, “runs a homeschool, properly registered with the Keyes School District…, in which she teaches her youngest daughter (age 4).”
Prosecutors also pointed out that numerous children who fit Gray’s victim profile live within a one-mile radius.
On July 22, Stanislaus Superior Court Judge Carrie M. Stephens found the placement to be unsuitable under §6608(f). Gray filed a petition for writ of mandate, which the Fifth District denied in November.
Gray and the Department of State Hospitals petitioned the California Supreme Court for review, and the high court ordered that the case be retransferred to the Fifth District, with directions to vacate the denial and to issue an order directing the superior court to show cause why the relief should not be granted.
In Tuesday’s opinion, Detjen declared:
“Let a peremptory writ of mandate issue, directing the superior court to vacate its order dated July 22, 2024, holding that Gray’s placement at the proposed site is barred by section 6608.5, subdivision (f). The order to show cause is discharged.”
Cheek Case
Detjen distinguished the school in Cheek, writing:
“The issue identified in Cheek was not whether the private school qualified as a school, a point which the majority presumed, but rather whether the placement restriction contained in section 6608.5, subdivision (f) was limited to… non-home-based schools….The majority first determined that the statutory text did not reflect a legislative intent to ‘exclude schools located in a home from the placement restriction’ because ‘the Legislature used broad language to define what kinds of schools trigger the restriction.’ ”
She noted that the school at issue in Cheek was a homeschool properly registered with the state as an independent “private school.” Finding this distinction to be essential, the jurist said:
“Here, there is no question that the child residing at the residence adjacent to the proposed placement site is enrolled in an institution legally recognized as a school by the Education Code. However, that school is a public charter school located approximately five miles from the proposed placement and therefore does not implicate the placement restriction. Moreover…, the independent course of study the child participates in is considered a program, rather than a separate school.”
Saying that independent study is an alternative to classroom instruction offered by public schools to meet a variety of educational needs with no set location required, she concluded that this option is a “program” and not a type of “school.” Based on this distinction, she concluded that “Cheek does not resolve” the present case.
Statutory Interpretation
She pointed out that §6608.5 does not define what qualifies as a “school” and turned to the ordinary meaning of the term. Citing dictionary definitions, she remarked:
“These definitions do not suggest that every location where learning may take place constitutes a school. Rather, the ordinary meaning of the term ‘school,’ and particularly of the term ‘public school,’ is a location where children congregate for instruction. A home where a child engages in independent study does not fit within this definition.”
Explaining in a footnote that “the child in this case is enrolled in a public school,” she said that the court declined to consider “the definition of a private school.”
The justice found that the legislative purpose behind the placement restriction supports the court’s reading, reasoning:
“The Legislature’s particular focus on schools suggests it was concerned with the dangers posed by SVP’s to children in and around the congregate, institutional setting of a traditional public school, rather than any dangers posed to children engaged in independent learning at home.”
Ordinary Definition
Detjen continued:
“[W]e note that…public school independent study programs….may be completed at home, in a hotel room, on an airplane, at a museum, at the beach, or any combination of locations the child and family choose. It would be absurd to consider most of these locations a ‘school’ simply because a student has chosen to study there for even a brief period of time. Nor do we believe the Legislature intended to eschew the ordinary definition of a school to require courts to determine, on a case-by-case basis, whether any of these independent study scenarios are sufficiently school-like to warrant invocation of the placement restriction. Instead, the Legislature used ordinary terms—’any public or private school’—in setting the placement restriction, and we assume the Legislature meant what it said.”
She added:
“[T]he People argue denial of the proposed placement was proper on alternative grounds: the proximity of children who fit Gray’s victim profile….Although the People raised this argument against the placement in the trial court, the trial court did not consider it, nor did it make factual findings on this point. We therefore decline to consider this argument in the first instance. The People may raise any alternative arguments regarding the proposed placement in the trial court.”
Further Proceedings
The justice left open the possibility that Gray could be barred from the prospective residence as the result of further proceedings in the trial court. She said:
“[T]he People argue denial of the proposed placement was proper on alternative grounds: the proximity of children who fit Gray’s victim profile. Pursuant to section 6608.5, subdivision (e)(2), the proximity of persons meeting an offender’s victim profile is a proper consideration in determining the suitability of a proposed placement. Although the People raised this argument against the placement in the trial court, the trial court did not consider it, nor did it make factual findings on this point. We therefore decline to consider this argument in the first instance. The People may raise any alternative arguments regarding the proposed placement in the trial court.”
The case is Gray v. Superior Court (People), F088505.
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