In re Taylor
BAXTER, J.—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 ‘strength[en-ing] and improv[ing] the laws that punish and control sexual offenders’ (id., § 31).” (In re E.J. (2010) 47 Cal.4th 1258, 1263 [104 Cal.Rptr.3d 165, 223 P.3d 31] (E.J.).)
Among its proponents’ objectives, Jessica’s Law sought to “prevent sex offenders from living near where our children learn and play” by creating “predator free zones around schools and parks” (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) argument in favor of Prop. 83, p. 46, cаpitalization & italics omitted) through the enactment of mandatory residency restrictions in the form of an amendment to
Petitioners in this consolidated habeas corpus proceeding were registered sex offenders on active parole in San Diego County against whom
As will be explained, we agree that
Nonetheless, as the lower courts made clear, CDCR retains the statutory authority, under provisions in the Penal Code separate from those found in
Procedural and Factual Background
A. The habeas corpus proceedings initiated in E.J.
In E.J., supra, 47 Cal.4th 1258, four registered sex offenders on parole in various counties for offenses committеd before the passage of Proposition 83, but who were thereafter released on parole, filed a unified petition for habeas corpus challenging the constitutionality of
The E.J. petitioners further claimed that “
We observed in E.J. that the petitioners were “not all similarly situated with regard to their paroles,” as they had been “paroled to different cities and counties within the state,” and that “the supply of housing in compliance with
We noted that these claims, unlike the retroactivity and ex post facto contentions, were “considerably more complex ‘as applied’ challenges” to the residency restrictions (E.J., supra, 47 Cal.4th at p. 1281), and that the evidentiary record before us was insufficient to decide them. Accordingly, we remanded the cases for evidentiary hearings in the trial courts of the various counties to whiсh the E.J. petitioners had been paroled. (Id., at p. 1284.) We further outlined an agenda for finding the relevant facts necessary to decide the petitioners’ claims at these hearings. The issues, we stated, should “include, but . . . not necessarily [be] 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’ (
Two of the four petitioners in E.J. were from San Diego County; the remand of their cases to that county for an evidentiary hearing gave rise to the instant consolidated habeas corpus proceeding. By May 2010, however, the two San Diego E.J. petitioners had been discharged from parole and their
On February 18, 2011, the evidentiary hearing commenced in the San Diego County Superior Court. The following facts, drawn in large part from the opinion of the Court of Appeal, were established with regard to the circumstances of the four representative petitioners, the manner in which CDCR was enforcing the statute in San Diego County, and the general unintended and socially deleterious effects of such enforcement in that county.
B. Petitioners’ respective parole and residential statuses
1. William Taylor
William Taylor was paroled in January 2008 after serving a sentence for failing to register as a sex offender. (
Taylor suffers from numerous illnesses, including throat cancer, AIDS, and diabetes. He has had a heart attack and several strokes, suffers from chronic depression and paranoid schizophrenia, and is addicted to cocaine. He had planned to live in Spring Valley with relatives, one of whom is a health care professional, but could not do so because the location of their residence is not compliant with the residency restrictions of
Shortly thereafter Taylor was suspended from the Etheridge Center for nonsexual misconduct, was rearrested for another parole violation, was rereleased on parole and remained homeless for several weeks, and was then placed in a boarding house in Vista by CDCR, which was a three-hour bus ride from his parole office, his outpatient clinic, and the medical facility that agreed to provide his medical care. While in the Vista facility, Taylor collapsed and was hospitalized in the intensive care unit. His parole agent warned Taylor he would be arrested if he did not register the hospital address with local authorities within five days. Taylor’s parole was revoked for not registering the hospital address and for possession of drug paraphernalia. Upon his rerelease on parole, Taylor lived in a comрliant hotel with the CDCR paying the rent for 60 days. At the time of the evidentiary hearing, Taylor was living in the hotel.
2. Jeffrey Glynn
In 2009, Jeffrey Glynn was released on parole after serving a sentence for a theft-related crime. He is required to register as a sex offender due to his conviction, in 1989, of misdemeanor sexual battery (
Glynn planned to live with his wife and their children when he was paroled, but the location of the family’s residence was not compliant with the residency restrictions of Jessica’s Law. Glynn’s wife did not want to move, and he was unable to find compliant housing in the area, so he purchased a van and lived in it as a transient. In December 2009, the court granted Glynn’s motion for a temporary injunction enjoining enforcement of the residency restrictions against him. However, one week earlier, Glynn had committed a burglary. When Glynn was paroled again in August 2010, he moved into the family’s noncompliant apartment under the previously issued injunction and was living there at the time of the evidentiary hearing.
3. Julie Briley
In April 2009, Julie Briley was released on parole after serving a prison term for failing to register as a sex offender. She is required to register due to her conviction, in 1988, of committing a lewd and lascivious act on a child under the age of 14 years. (
Briley had planned to live with her sister upon her release, but the location of her sister’s residence is not compliant with the 2,000-foot residency restrictions.3 The restrictions also prevented Briley from living with her sister-in-law or in any of the shelters or sober living houses for women with an available bed. After learning from a parole agent that other homeless parolees slept in an alley near the parole office, Briley began sleeping there, along with 15 to 20 other persons. Briley, who has hepatitis C, high blood pressure, thyroid problems and osteoarthritis that is aggravated by exposure to cold temperatures, lived there for approximately one and one-half years.
In July 2009, the court granted Briley a temporary injunction against enforcement of the residency restrictions as а condition of her parole, but she was unable to find affordable housing until November 2010. At the time of the evidentiary hearing, Briley lived in a recreational vehicle parked at a noncompliant location in return for five hours of work each week. She has two other part-time jobs, which together pay her approximately $250 a month.
4. Stephen Todd4
In June 2008, Stephen Todd was released on parole after serving a prison term for drug possession. He is required to register as a sex offender after the juvenile court found, in 1981, when he was 15 years old, that he committed a lewd and lascivious act with a child under 14 years old by molesting his 10-year-old sister. (
C. The availability of compliant housing in San Diego County
In June 2006, Julie Wartell, a contract crime analyst for the San Diego County District Attorney’s Office, used an automated mapping program to prepare an electronic map depicting the expected effect of the residency restrictions of Jessica’s Law on available housing in San Diego County. Wartell mapped the location of all public and private schools, kindergarten through 12th grade, and all active parks (see San Diego County, Code of Reg. Ords., tit. 8, div. 10, ch. 1, § 810.102, subd. (a)) in the county. Then, using data from the tax assessor’s office showing the location of residential land parcels throughout the county, she drew shаded circles around each school and park on the map to reflect the 2,000-foot buffer zones around each such location. Thus, Wartell’s map showed locations that were not compliant with the residency restrictions; residences within the shaded circles or buffer zones were noncompliant and unavailable to paroled registered sex offenders.
In 2010, Wartell twice updated her analysis and map to reflect recent additions of parks and schools in the county. Two analysts with the San Diego County Department of Planning and Land Use then refined Wartell’s work into a 288-page map book and an online map application, both of which allow a person to view specific areas in much greater detail. In its statement of decision, the trial court stated the map “graphically show[s] huge swaths of urban and suburban San Diego, including virtually all of the downtown area, completely consumed by the [residency] restrictions.”
The trial court further found that sex offender parolees are unlikely candidates to rent single-family homes and are most likely to seek out housing in apartments or low-cost residential hotels. Wartell’s research showed that if single-family residences are eliminated from all the compliant residential parcels in San Diego County, the percentage of multifamily parcels that are compliant with the residency restrictions is less than 3 percent (2.9 percent). David Estrella, then the director of the San Diego County Department of Housing and Community Development, testified that at the time of the evidentiary hearing the countywide vacancy rate for low-income rental housing was approximately 5 to 8 percent. The trial court found that, as a practical matter, not all of the 2.9 percent of multifamily parcels located outside the buffer zones around schools and parks was necessarily available for rent to parolees due to the demand for low-cost housing in San Diego County, which had more than doubled in recent years.
Petitioners’ counsel also enlisted the assistance of four investigators from the San Diego County Public Defender’s Office to identify the potential number of compliant multifamily rental units that might reasonably be located and secured by registered sex offender parolees looking for such housing. Various factors were considered that could make it difficult for such persons to secure compliant housing, including the parolees’ limited financial resources that typically made rent exceeding $850 per month5 prohibitive; whether a criminal background check was required; whether a credit history check was required; whether a deposit of more than two months’ rent or income of more than two and one-half times the rent were required; and access to available public transportation. The investigators deemed otherwise compliant housing unsuitable if it met any of these exclusionary criteria. Limiting their search to compliant multifamily parcels with at least five units due to time constraints, the investigators found that only one-quarter of the 54 apartment complexes containing more than 60 units in the county rented units for $850 or less per month, with none available in downtown San Diego, and that of the 57 apartment complexes with between 15 and 60 units, only nine had units that rented for $850 or less per month.
D. CDCR’s statewide protocol for enforcing the residency restrictions
Upon their release from prison on parole, parolees are informed of their parole conditions and are further notified of thе availability of social services, medical and psychological treatment resources, drug and alcohol dependency services, job counseling, and services for obtaining a general equivalency certificate, all designed to assist their transition back into society at no cost to them. Registered sex offenders released on parole are additionally advised of their obligation to comply with the residency restrictions of Jessica’s Law. They bear the responsibility for locating compliant housing, as reflected in CDCR’s policy memoranda. Parole agents are not authorized to tell sex offender parolees where to live or to recommend areas where they should look for compliant housing. In some specified and limited circumstances, if the parolee cannot afford housing, CDCR will provide funds so that he or she can obtain temporary transitional housing. Such limited housing assistance is usually reserved for the mentally ill, or for those who require housing for their or the public’s safety, and is usually limited to 60 days and $1,500.
Upon locating a particular residence where he or she would like to live, a registered sex offender pаrolee must disclose the address of the intended residence to the parole agent. The agent has six working days to verify whether the parolee’s intended residence is compliant with section
As notеd by the Court of Appeal, among other things, CDCR Policy No. 07-36 requires supervisors of parole agents who handle registered sex offender caseloads to “ ‘continue to collaborate with community-based programs and local law enforcement to facilitate the identification of compliant housing for sex offender parolees.’ ” The Court of Appeal also noted the policy also requires supervisors to “ ‘utilize all available resources to obtain a current listing of all public and private schools and parks within their communities,’ ” and to provide “ ‘[u]pdated information’ ” from the list to parole agents at least once a month. CDCR also has a procedure for obtaining waivers of the residency restrictions for parolees who are mentally ill and are housed in a mental health facility, and for parolees who are in need of medical care in a licensed medical facility that provides 24-hour care.
E. Enforcement of section 3003.5(b) in San Diego County and the resulting increased homelessness among paroled registered sex offenders
At the time of the evidentiary hearing there were 482 registered sex offenders on active parole in San Diego County who were not in custody or in parolee-at-large status. Of that group, 165 (34 percent) were registered as transient or homeless, and 317 had a residential address on file with their parole office. However, the latter group included 140 parolees who had sought habeas corpus relief and received a stay of enforcement of
Detective Jim Ryan, a supervisor in the San Diego Police Department’s sex offender registration unit, testified to a dramatic increase in the number of sex offender parolees who registered as transient with his department in the two years after Jessica’s Law took effect on November 7, 2006. Between September 2007 and August 2010, the number of registered sex offenders on active parole in the City of San Diego who registered as transient with the San Diego Police Department increased four- to fivefold. Prior to Jessica’s Law, many registered sex offender parolees lived in residential hotels in downtown San Diego, a situation favored by law enforcement because it fostered better surveillance and supervision. Some of these hotels are not in locations compliant with the residency restrictions, while others have been since demolished as a result of redevelopment.
Evidence was also presented below attesting that, from a law enforcement perspective, homeless sex offender parolees are more difficult to supervise than those who have established residences. Parole Agent Maria Dominguez testified that before Jessica’s Law was enacted, she did not allow sex offender parolees in her caseload to live “on the street.” Many lived in residential programs or in downtown San Diego hotels, where they could be easily supervised. When her office began enforcing the residency restrictions of Jessica’s Law in 2007, agents would show parolees areas they considered compliant or tell them about specific addresses. But when her supervisor was transferred, аgents were no longer allowed to advise parolees about compliant areas. If a parolee asked where he or she could live, the agent was instructed to say: “I can’t tell you where you could live, but if you bring me an address I will check it and make sure that it’s compliant.”
Parole Agent Manuel Guerrero, who for three and one-half years was the supervisor of one of the two San Diego County units that supervise sex offender parolees, testified that as of the time of the hearing CDCR had not issued a policy statement defining either “school” or “park” for purposes of enforcing Jessica’s Law. Guerrero defined “school” as any public or private school from kindergarten through 12th grade, but acknowledged some sex offender parolees in San Diego County have received Jessica’s Law parole conditions that extended the restrictions to daycare centers.7 He defined “park” as an area “where kids would normally be at,” explaining he would
Evidence was also presented showing that homelessness poses significant challenges to sex offender treatment professionals in their efforts to rehabilitate sex offenders. John Chamberlin was employed by CDCR to provide psychotherapy and counseling to paroled sex offenders at parole outpatient clinics. Chamberlin testified that homelessness among paroled sex offenders is both morally and psychologically destabilizing to the parolees, hindering the success of their therapy and rehabilitation. Similarly, Michael Feer, a clinical social worker previously employed by CDCR to provide group and individual counseling to sex offenders at a parole outpatient clinic, testified at least 50 percent of his patients were homeless, and that homelessness was a significant impediment to his patients’ mental and physiсal health and stability.
Finally, the trial court took judicial notice of a CDCR report issued in October 2010 by the department’s own sex offender supervision and GPS monitoring task force (Task Force), a multidisciplinary group comprised of CDCR staff, law enforcement personnel, and other outside participants charged with making recommendations to the CDCR on various sex offender issues. The Task Force studied the increased rate of homelessness among paroled sex offenders following the enactment of
F. The trial court’s findings of fact
At the conclusion of the eight-day evidentiary hearing the trial court issued its statement of decision in which it made, among others, the following findings of fact:
(1) Despite certain imprecisions, the map book prepared by San Diego County crime analyst Julie Wartell is the most accurate assessment of housing that is reasonably available to registered sex offender parolees in San Diego County.
(2) Registered sex offender parolees are unlikely candidates to rent single-family homes; they are most likely to be housed in apartments or low-cost residential hotels.
(3) By virtue of the residency restrictions alone, registered sex offender parolees are effectively barred from access to approximately 97 percent of the existing rental property that would otherwise be available to them.
(4) The remaining 3 percent of multifamily rental housing outside the exclusion areas is not necessarily available to registered sex offender parolees for a variety of reasons, including San Diego County’s low vacancy rate, high rents, and the unwillingness of some landlords to rent to such persons.
(5) In addition to CDCR’s policy prohibiting parole agents from supplying registered sex offender parolees with specific information about the location of compliant housing, parole authorities in San Diego County have taken affirmative steps to prevent parole agents from helping parolees find compliant housing.
(6) Rigid application of the residency restrictions results in large groups of registered sex offender parolees having to sleep in alleys and riverbeds, a circumstance that did not exist prior to Jessica’s Law.
(7) The residency restrictions place burdens on registered sex offender parolees that are disruptive in a way that hinders their treatment, jeopardizes their health and undercuts their ability to find and maintain employment, significantly undermining any effort at rehabilitation.
The trial court concluded the residency restrictions, enforced as a mandatory parole condition against the four petitioners (Taylor, Glynn, Briley, and Todd) in San Diego County, are “unconstitutionally unreasonable,” and ordered CDCR to cease enforcing the restrictions against petitioners. The сourt subsequently issued a supplemental statement of decision ordering CDCR to cease enforcing
G. The appeal
CDCR appealed the trial court’s injunctive orders. The Court of Appeal affirmed, concluding that “the blanket enforcement of section 3003.5(b) as a parole condition in San Diego County has been unreasonable and constitutes arbitrary and oppressive official action.” Like the trial court, the Court of Appeal concluded that “[p]arole agents retain the discretion to regulate aspects of a parolee’s life, such as where and with whom he or she can live. (
We granted CDCR’s petition for review.
Discussion
Petitioners in this consolidated habeas corpus proceeding sought writ relief on grounds that the residency restrictions in
As a general matter, we review the grant of a writ of habeas corpus by applying the substantial evidence test to pure questions of fact and de novo review to questions of law. (In re Collins (2001) 86 Cal.App.4th 1176, 1181 [104 Cal.Rptr.2d 108].) “[W]hen the application of law to fact is predominantly legal, such as when it implicates constitutional rights and the exercise of judgment about the values underlying legal principles, [the appellate] court’s review is de novo.” (Ibid.) The Court of Appeal determined that the trial court’s factual findings are supported by substantial evidence adduced at the evidentiary hearing. CDCR does not contest that conclusion. We therefore proceed with our de novo review of the constitutional legal questions in light of the factual record made below.
A. Standard of review applicable to petitioners’ constitutional challenges
We next consider what particular standard of review should be invoked to evaluate the constitutionality of
Petitioners alleged below that blanket enforcement of
CDCR in turn argues that while some of the constitutional rights petitioners assert—the right to intrastate travel, to establish and maintain a home, and to privacy and free association within one’s home—may be considered fundamental rights when advanced by members of the general public, the liberty interests of registered sex offenders while on parole are necessarily lawfully circumscribed and protected to a lesser degree than those of ordinary citizens. CDCR argues that petitioners, while serving a term of supervised parole, do not enjoy the claimed fundamental constitutional rights and liberty interests in their fullest sense, and accordingly, rational basis review, rather than heightened strict scrutiny review, is the appropriate level of judicial scrutiny by which to gauge the constitutionality of
CDCR’s threshold premise, that the liberty interests of parolees is not the same as those of ordinary citizens, finds support in the case law. The
On the other hand, petitioners’ assertion that parolees, although under the constructive custody and supervision of the parole authorities, nevertheless retain certain basic rights and liberty interests while on parole, finds support in the case law as well. “[T]he liberty of a parolee . . . includes many of the core values of unqualified liberty” and his or her “condition is very different from that of confinement in a prison.” (Morrissey v. Brewer, supra, 408 U.S. at p. 482; see Burgener, supra, 41 Cal.3d at p. 530.) As Burgener, quoting a commentator, observed, “ ‘[I]n most cases the life of a parolee more nearly resembles that of an ordinary citizen than that of a prisoner. The parolee is not incarcerated; he is not subjected to a prison regimen, to the rigors of prison life and the unavoidable company of sociopaths. . . . The
In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners’ constitutional challenges to
B. Scrutiny of petitioners’ as-applied constitutional challenges under the rational basis test
The habeas corpus claims before us do not present a facial challenge to the statute.9 Instead, petitioners have pursued habeas corpus relief in the wake of
“An as applied challenge [seeking] relief from a specific application of a facially valid statute . . . to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute . . . has been applied . . . contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute . . . has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right. (See, e.g., Broadrick v. Oklahoma (1973) 413 U.S. 601, 615–616 [37 L.Ed.2d 830, 93 S.Ct. 2908]; County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 672 [114 Cal.Rptr. 345, 522 P.2d 1345]; In re Marriage of Siller (1986) 187 Cal.App.3d 36, 49 [231 Cal.Rptr. 757].)” (Tobe, supra, 9 Cal.4th at p. 1084, italics added.)
The United States Supreme Court has emphasized that consideration of as-applied challenges, as opposed to broad facial challenges, “is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501–502 [86 L.Ed.2d 394, 105 S.Ct. 2794] (1985); United States v. Grace, 461 U.S. 171 [75 L.Ed.2d 736, 103 S.Ct. 1702] (1983); NAACP v. Button, 371 U.S. 415 [9 L.Ed.2d 405, 83 S.Ct. 328] (1963).” (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 447 [87 L.Ed.2d 313, 105 S.Ct. 3249].) More recently, in Gonzales v. Carhart (2007) 550 U.S. 124 [167 L.Ed.2d 480, 127 S.Ct. 1610], the high court explained that “[i]t is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. ‘[I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.’ [Citation.] For this reason, ‘[a]s-applied challenges are the basic building blocks of constitutional adjudication.’ [Citation.]” (Id. at p. 168.)
At the conclusion of the evidentiary hearing below, the trial court found that blanket enforcement of
The record further reflects that blanket enforcement of the residency restrictions has had other serious implications for all registered sex offenders on parole in San Diego County. Medical treatment, psychological counseling, drug and alcohol dependency services, and other rehabilitative social services available to parolees are generally located in the densely populated areas of the county. Relegated to less populated areas of the County, registered sex offender parolees can be cut off from access to public transportation, medical care, and other social services to which they are entitled, аs well as reasonable opportunities for employment. The trial court specifically found that the residency restrictions place burdens on petitioners and similarly situated sex offenders on parole in the county that “are disruptive in a way that hinders their treatment, jeopardizes their health and undercuts their ability to find and maintain employment, significantly undermining any effort at rehabilitation.”10
Perhaps most disturbing, the record reflects that blanket enforcement of
The increased incidence of homelessness has in turn hampered the surveillance and supervision of such parolees, thereby thwarting the legitimate governmental objective behind the registration statute (
Last, the trial court agreed with petitioners that the manner in which CDCR has been implementing the residency restrictions in San Diego County has
The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole. We conclude the evidentiary record below establishes that blanket enforcement of Jessica’s Law’s mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore,
Last, we agree with the observations of the Court of Appeal that CDCR retains the statutory authority, under provisions in the Penal Code separate from those found in
Conclusion
The judgment of the Court of Appeal is affirmed.
Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Corrigan, J., Liu, J., and Grover, J.,* concurred.