101 Cal. App. 4th 238 | Cal. Ct. App. | 2002
Opinion
In this appeal, defendant Brian Thomas Bailey challenges a gang registration requirement imposed on him as a condition of probation under Penal Code section 186.30, part of the Gang Violence and Juvenile Crime
Background
On March 31, 2000, defendant pleaded no contest to assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a)). Defendant also admitted that the assault was committed for the benefit of or in association with a criminal street gang, within the meaning of Penal Code section 186.22, subdivision (b)(1).
The registration condition was imposed in accordance with sections 186.30 through 186.33, which were added by the voters at the March 7, 2000 election with the passage of Proposition 21. Section 186.32 provides for registration at the police or sheriffs department by the offender, along with a written statement “giving any information that may be required by the law enforcement agency.”
On May 19, 2000, defendant returned to court to object to the registration requirement and the provision for giving a statement to law enforcement authorities. Defense counsel argued that the provision was vague and over-broad, that it violated defendant’s right to equal protection, and that it compelled defendant to give up his Sixth Amendment right to counsel and his Fifth Amendment right against self-incrimination. Counsel also added “an ex post facto objection,” because the offense had occurred in November 1999, before the passage of Proposition 21. The trial court, however, declined to modify its sentencing order.
Discussion
1. Prospective Application of Proposition 21
Defendant first contends that the gang registration requirement should not have been imposed on him because section 3 requires prospective
Section 3 provides that no part of the Penal Code is retroactive unless “expressly so declared.” The Supreme Court has construed this language to include either “an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise.” (People v. Hayes (1989) 49 Cal.3d 1260, 1274 [265 Cal.Rptr. 132, 783 P.2d 719]; People v. Grant (1999) 20 Cal.4th 150, 157 [83 Cal.Rptr.2d 295, 973 P.2d 72].) We believe that the Legislature expressed its intent that the registration requirement “apply to any person convicted in a criminal court” of certain offenses. (§ 186.30.) Because defendant was convicted after the effective date of section 186.30, the law applies to him.
2. Ex Post Facto
Defendant maintains, however, that if the gang registration provision is applied to him, it must be deemed to be an ex post facto law in violation of article I, section 10 of the United States Constitution and article I, section 9 of the California Constitution. Legislative acts that are improper under these constitutional principles may consist of (1) punishing an act that was innocent when done, (2) making more burdensome the punishment for a crime after its commission, (3) depriving the accused of a defense available when the alleged crime was committed, or (4) altering the legal rules of evidence to require less or different proof than was required at the time of the offense. (Collins v. Youngblood (1990) 497 U.S. 37, 42 [110 S.Ct. 2715, 2719, 111 L.Ed.2d 30]; Colder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390 [1 L.Ed 648, 650].) Simply stated, “Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Collins v. Youngblood, supra, 497 U.S. 37, 43 [110 S.Ct. 2715, 2719]; People v. Castellanos (1999) 21 Cal.4th 785, 791 [88 Cal.Rptr.2d 346, 982 P.2d 211].)
A change in the law that merely operates to the disadvantage of the defendant or constitutes a burden is not necessarily ex post facto. (Collins v. Youngblood, supra, 497 U.S. at p. 50 [110 S.Ct. at p. 2723]; California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 506-507, fn. 3 [115 S.Ct. 1597, 1601-1602, 131 L.Ed.2d 588]; People v. Ansell (2001) 25 Cal.4th 868, 891-892 [108 Cal.Rptr.2d 145, 24 P.3d 1174].) It must be “a more burdensome punishment.” (People v. McVickers (1992) 4 Cal.4th 81, 84 [13 Cal.Rptr.2d 850, 840 P.2d 955].) As we noted in People v. Fioretti (1997) 54 Cal.App.4th 1209, 1213 [63 Cal.Rptr.2d 367], “[t]he proper inquiry post -Collins is not whether the law results in a disadvantage to the person affected by it but rather whether it increases the penalty by which a crime is punished.”
3. Vagueness and Overbreadth
As noted above, a person subject to the registration requirement must appear at the appropriate law enforcement agency
For the same reason, section 186.32 does not abridge free speech and freedom of association. It does not compel answers to unlimited questions from law enforcement officers. The statute requires no more information than is necessary to carry out the legitimate purposes of the Gang Violence and Juvenile Crime Prevention Act of 1998, and is therefore not impermissibly overbroad.
Defendant further contends that the requirement that a registrant provide “any information” the agency requires will subject him to violations of his right to remain silent and his right to have counsel present during questioning. Inasmuch as we have determined that the questioning is limited to descriptive information about the registrant, it does not implicate the Fifth or Sixth Amendment. Defendant will not be subjected to custodial interrogation or prosecution in violation of his right to remain silent or his right to counsel, nor can the challenged procedure be regarded as comparable to a “pre-indictment investigation” of a crime suspect.
5. Single-subject Rule
Defendant finally contends that Proposition 21 violates the single-subject rule contained in article II, section 8, subdivision (d) of California Constitution.
Disposition
The judgment is affirmed.
Premo, Acting P. J., and Wunderlich, J., concurred.
Appellant’s petition for review by the Supreme Court was denied October 2, 2002.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant’s argument that the statute is excessively burdensome is premised on the assertion that it permits the “arbitrary collection of any information that any local law enforcement agency might seek to collect,” which could turn the registrant into an informer. We treat this assumption in the discussion of vagueness and overbreadth, post.
Section 186.30 directs the registrant to the chief of police of the city in which he or she resides, or the county sheriff if the registrant lives in an unincorporated area. Thus, it is not true that “any local law enforcement agency” is entitled to collect information from the registrant, as defendant suggests.
Registration by sex offenders entails “[a] statement in writing signed by the person, giving information as shall be required by the Department of Justice and giving the name and address of the person’s employer, and the address of the person’s place of employment if that is different from the employer’s main address.” (§ 290, subd. (e)(2)(A).) Narcotics offenders must register by providing “a statement in writing signed by such person, giving such information as may be required by the Department of Justice” as well as fingerprints and a photograph. (Health & Saf. Code, § 11594.) Arsonists similarly are required to provide “a statement in writing signed by the person, giving the information as may be required by the Department of Justice” along with fingerprints and a photograph. (§ 457.1, subd. (f).)
This provision states, “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” (Cal. Const., art. II, § 8, subd. (d).)