THE PEOPLE, Plaintiff and Respondent, v. STEVEN LLOYD MOSLEY, Defendant and Appellant.
No. S187965
Supreme Court of California
Mar. 2, 2015
1044
Allison H. Ting and George L. Schraer, under appointments by the Supreme Court, for Defendant and Appellant.
Stephen P. Lipson, Public Defender (Ventura), and Michael C. McMahon for California Public Defenders Association as Amicus Curiae on behalf of Defendant and Appellant.
Richard Such for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant.
Christina Allbright for California Coalition on Sexual Offending and The Association for the Treatment of Sexual Abusers as Amici Curiae on behalf of Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Michael P. Farrell, Assistant Attorneys General, Donald E. de Nichola, Deputy State Solicitor General, Peter Quon, Jr., Lilia E. Garcia, Angela M. Borzachillo, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
BAXTER, J.*—We confront a single, narrow issue. Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) held that the Sixth Amendment generally requires a jury to find “any fact that increases the penalty for a crime beyond the prescribed statutory maximum.” (530 U.S. at p. 490, italics added.) If a judge makes the findings underlying his or her discretionary order that a convicted criminal defendant must register as a sex offender, is the order invalid under Apprendi insofar as it includes registered sex offender residency restrictions imposed by 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)? We conclude the answer is no.
California law has long required persons convicted of certain specified sex crimes, including commission of a lewd act on a child under 14 (
On November 7, 2006, the voters enacted Proposition 83. Among other things, the initiative measure sought to create “predator free zones around schools and parks to prevent sex offenders from living near where our children learn and play.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) (Voter Information Guide) argument in favor of Prop. 83, p. 46, italics & capitalization omitted.) To this end, Proposition 83 added new subdivision (b) to an existing statute,
Prior to Proposition 83,
Here, defendant‘s 2003 conduct with a 12-year-old girl led to a charge he committed a lewd act on a child under 14. In a 2007 trial, the jury acquitted him of that crime, but convicted him of the lesser misdemeanor offense of simple assault. At sentencing, the court exercised its discretion to order him to register as a sex offender. To support this action, the court found, as specified in
The Court of Appeal accepted defendant‘s argument that the registration order is invalid under Apprendi because the trial judge, and not a jury, made the predicate factual findings. The appellate court was persuaded by well-settled authority that a requirement to register as a sex offender is not, in and of itself, a criminal penalty, or punishment, for the conviction that led to imposition of the requirement. But the court concluded that the residency restrictions of Jessica‘s Law are punitive, that the initiative measure made these restrictions an integral part of every registration order, including defendant‘s, and that the lack of jury findings to support the instant order thus violated Apprendi.
On review, the People urge at the outset that even if the residency restrictions of Jessica‘s Law are punitive, they do not invalidate defendant‘s registration order because they simply do not apply to this order. The People posit that as a matter of statutory intent, section 3003.5(b)‘s residency restrictions apply only to parolees while they are on parole, and have no effect on a nonparolee misdemeanant such as defendant.
We need not, and do not, decide this threshold issue of statutory construction in order to resolve the narrow Apprendi issue before us. Even if we assume, as defendant insists, that
First, as the People also argue, the effect of Apprendi on the residency restrictions of Jessica‘s Law is obviated by a post-Apprendi decision, Oregon v. Ice (2009) 555 U.S. 160 [172 L.Ed.2d 517, 129 S.Ct. 711] (Ice). In Ice, the high court concluded that the Sixth Amendment‘s protections must be viewed in light of the jury trial right as it existed at the time the Constitution was adopted, and cannot intrude unduly on the sovereign states’ historical
Second, we disagree in any event that the residency restrictions constitute a penalty for purposes of Apprendi. Under tests traditionally employed to determine what constitutes punishment for constitutional purposes, the residency restrictions, like sex offender registration itself, cannot facially be considered anything other than a legitimate, nonpunitive regulatory device. Their manifest intent is not to exact retribution, or to deter by threat of sanction, but to promote public safety by physically insulating vulnerable children from potentially recidivist registered sex offenders who might prey upon them. The restrictions may impose significant life difficulties in particular situations or communities,2 but they do not so resemble historical forms of punishment, and are not, on their face, so onerous, disabling, irrational, or overbroad as to require a conclusion that their punitive effect overrides their regulatory purpose.
Third, even if the residency restrictions of Jessica‘s Law did require jury findings under Apprendi, this would not mean a registration order unsupported by such findings must be struck. No reason appears why the nonpunitive registration order itself should not survive in such a case, even if the attendant residency restrictions were unenforceable.
For these multiple reasons, we conclude the Court of Appeal erred in holding, under Apprendi, that defendant‘s sex offender registration order is invalid. Accordingly, we will reverse the Court of Appeal‘s judgment insofar as it struck the order from defendant‘s conviction.
FACTS AND PROCEDURAL BACKGROUND
In October 2005, the Orange County District Attorney charged defendant by information with one count of committing a lewd act upon a child under the age of 14. (
Approximately three days later, Lori was in the apartment complex carport. Defendant approached her and kissed her on the neck, telling her to relax and not say anything. Lori tried to move away, but defendant held her wrists and pinned her to the wall with the weight of his body so she could not move. Defendant tried to stick his tongue into her mouth. He then put his hand up her shirt and down her pants, grabbing her breasts and buttocks and rubbing her between her legs. Pulling down his own shorts and pulling Lori‘s skirt to one side, defendant put his penis in Lori‘s vagina “for about two minutes.”
Lori‘s older brother, who was approximately 14 years old at the time of the incident, saw defendant standing in front of Lori with his shorts pulled down around his knees and the bottom of the shorts touching the ground. Lori‘s younger brother, who was approximately 11 years old at the time of the incident, also saw defendant with his shorts pulled down to his knees and his arms around Lori, who was pinned up against a wall. Her younger brother could see defendant‘s naked buttocks, and heard his sister say “no” to defendant at least three times. He went and told his grandmother, who came outside and saw Lori struggling with defendant. She called out Lori‘s name and yelled to defendant, “What are you doing? She‘s only twelve.” Defendant turned around, saw the grandmother, and fled by jumping over a wall.
Scared, confused, and embarrassed, Lori did not tell anyone else about the assault until several months later when she confided in her father and he reported the incident to the police. An Orange County Sheriff‘s Department investigator interviewed Lori in August 2003 and again in September 2005. During the interviews, Lori related substantially the same account of events to which she would later testify at trial. The Orange County Sheriff‘s Department did not request a sexual assault examination due to the passage of time, but Lori‘s parents took her for a medical examination to determine if she had contracted any sexually transmitted diseases as a result of the assault.
The jury acquitted defendant of the charge of committing a lewd act on a child under 14, but convicted him of the lesser included offense of simple assault, a misdemeanor. (
Although the jury found defendant not guilty of the charged sexual offense and guilty only of assault, the trial court exercised its discretion to order
On appeal, defendant conceded the validity of his misdemeanor assault conviction but challenged the registration order as factually unwarranted, and thus an abuse of the trial court‘s discretion. For the first time in his reply brief, defendant raised the additional claim that the order was invalid under Apprendi because it included the residency restrictions set forth in Jessica‘s Law.5 Defendant argued that, by barring him as a registered sex offender from residing within 2,000 feet of schools or parks where children gather
In its first opinion (Mosley I), the Court of Appeal rejected defendant‘s abuse of discretion claim, but agreed with his Apprendi argument. The appellate court reasoned that defendant, who was subject to the registration requirement, was also subject to the residency restrictions under
We granted review in Mosley I, ordered briefing deferred, and held the matter for the then pending decision in In re E.J. (2010) 47 Cal.4th 1258 [104 Cal.Rptr.3d 165, 223 P.3d 31] (E.J.). In E.J., we subsequently rejected an ex post facto challenge to the residency restrictions, as applied to four registered sex offenders who committed crimes prior to Jessica‘s Law, but who were released on parole for those crimes after the initiative measure became effective. We held that including the residency restrictions as mandatory parole conditions did not violate the ex post facto clauses by imposing punishment for the earlier crimes beyond that applicable when they were committed. We explained that the residency restrictions applied “to events occurring after” the statute‘s effective date—the release of the petitioners on parole, and their subsequent residency in noncompliant housing, and thus did not constitute punishment for the original offenses. (47 Cal.4th at p. 1280, italics added.)
After our decision in E.J. became final we retransferred the cause in Mosley I to the Court of Appeal for reconsideration in light of our holding in E.J. In a second published opinion, the Court of Appeal again concluded defendant was subject to the residency restrictions by virtue of the registration order, and that although sex offender registration itself may be regulatory, the restrictions, under application of the Mendoza-Martinez test, have an “overwhelming punitive effect.” Accordingly, the Court of Appeal again struck the trial court‘s registration order, affirming the judgment of conviction as so modified.
DISCUSSION
As noted, in Apprendi, the high court established that a criminal defendant generally has the Sixth Amendment right to a jury determination, beyond reasonable doubt, of “any fact that increases the penalty for a crime beyond the prescribed statutory maximum.” (Apprendi, supra, 530 U.S. at p. 490.) Defendant claims that his registration order is invalid because it increased the maximum penalty, or punishment, for his simple assault conviction and was imposed solely on the basis of findings made by a judge, not a jury.
Defendant concedes that sex offender registration itself does not constitute a penalty, or punishment, for purposes of constitutional analysis. (See, e.g., Smith v. Doe (2003) 538 U.S. 84, 93, 105-106 [155 L.Ed.2d 164, 123 S.Ct. 1140] [sex offender registration statutes serve the legitimate nonpunitive governmental objective of protecting the public from sex offenders]; People v. Picklesimer (2010) 48 Cal.4th 330, 343-344 [106 Cal.Rptr.3d 239, 226 P.3d 348] (Picklesimer) [because sex offender registration is not punishment, Apprendi does not require jury findings to support registration order]; People v. Presley (2007) 156 Cal.App.4th 1027, 1033-1035 [67 Cal.Rptr.3d 826] [same].) But he urges, and the Court of Appeal agreed, that the residency restrictions established by Jessica‘s Law are punitive, and that jury findings were thus required to support the registration order to which the restrictions attached.
The People oppose this conclusion on multiple grounds. They first urge that defendant‘s Apprendi argument fails at the threshold, because, contrary to his insistence, his registration order does not include any obligation to comply with the residency restrictions of Jessica‘s Law. The People posit that the residency restrictions of
However, we need not, and do not, decide this threshold statutory construction issue in advance of any concrete evidence of prosecutors’ intent to press charges against nonparolee sex offender registrants for noncompliance with the residency restrictions.7 Even if we assume the restrictions do impose
A. Apprendi and Oregon v. Ice.
In Apprendi, the defendant pleaded guilty to two counts of unlawful weapons possession and one count of unlawful possession of a bomb. A separate New Jersey hate crime statute provided for an “‘extended term’ of imprisonment if the trial judge [found], by a preponderance of the evidence, that ‘[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.‘” (Apprendi, supra, 530 U.S. at pp. 468-469.) None of the charged counts referred to the hate crime statute, and none alleged that Apprendi had acted with a racially biased purpose. At sentencing, the trial court found, by a preponderance of the evidence, that Apprendi‘s crime under one count to which he had pled guilty was motivated by racial bias within the meaning of the hate crime statute, which court-made finding resulted in an increased term of imprisonment for that count. (Id. at pp. 470-471.)
The high court in Apprendi observed that the Sixth Amendment right to trial by jury, and the Fourteenth Amendment right to due process of law in criminal matters, “constitutional protections of surpassing importance” (Apprendi, supra, 530 U.S. at p. 476), together “indisputably entitle a criminal defendant to ‘a jury determination that [he or she] is guilty of every
whether
Citing canons of judicial economy and restraint, the concurring and dissenting opinion criticizes us at length for extending E.J.‘s approach to the instant case. Here, the concurring and dissenting opinion reasons, if a court can find at the outset that
In decisions that followed in the wake of Apprendi, the high court expounded on what it meant by the phrase “any fact that increases the penalty for a crime beyond the prescribed statutory maximum.” (Apprendi, supra, 530 U.S. at p. 490, italics added.) In Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428] (Ring), the court held that allowing the sentencing judge, rather than the jury, to find aggravating circumstances necessary to impose the death penalty violates a capital defendant‘s Sixth Amendment jury trial right under Apprendi. (Ring, at pp. 602, 609.) In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), the court held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Id. at p. 303.) In United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621, 125 S.Ct. 738] (Booker), the court held that the federal sentencing guidelines violated the Sixth Amendment right to a jury trial by allowing the court to impose sentence enhancements based on its own factfinding, and severed the guideline provisions that made them mandatory. (Booker, at pp. 226-227.) The court in Booker explained that one principle it sought to vindicate in Apprendi was the avoidance of “‘arbitrary punishments upon arbitrary convictions’ without the benefit of a jury.” (Id. at pp. 238-239.) And in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham), the court held that California‘s then operative determinate sentencing law violated a criminal defendant‘s right to trial by jury by “allow[ing] a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. 275.)
Although the high court has not specifically defined the word “penalty” as used in Apprendi (“any fact that increases the penalty for a crime beyond the prescribed statutory maximum” (Apprendi, supra, 530 U.S. at p. 490, italics added)), Apprendi itself involved a court-made factual finding that directly increased the length of the prison sentence for the crime to which the defendant had pled guilty. Likewise, longer prison terms for the crimes of which the defendants had been convicted, based on facts found by the sentencing court, and not a jury, were also at the heart of the high court‘s post-Apprendi decisions in Blakely, supra, 542 U.S. at page 303; Booker,
The high court‘s decision in Ice, supra, 555 U.S. 160, refined and circumscribed the scope of the rule of Apprendi and its progeny in significant ways. Ice was decided nearly two years before the Court of Appeal filed its decision in this matter. Although neither the parties’ briefs in the Court of Appeal, nor that court‘s decision, mentions or discusses Ice, we are duty-bound to consider its application to the Apprendi claim here before us.
In Ice, the defendant claimed the facts underlying a decision to impose consecutive sentences must be made by a jury within the meaning of Apprendi‘s Sixth Amendment jury trial guarantee. Rejecting the claim, the high court distinguished sentencing for multiple offenses from the imposition of increased punishment for a particular crime, which was at the heart of the holdings in Apprendi and its progeny. (Ice, supra, 555 U.S. at pp. 167-168.)
The court in Ice first observed that “[o]ur application of Apprendi‘s rule must honor the ‘long-standing common-law practice’ in which the rule is rooted. [Citation.] The rule‘s animating principle is the preservation of the jury‘s historic role as a bulwark between the State and the accused at the trial for an alleged offense.... Apprendi, 530 U.S., at 477.” (Ice, supra, 555 U.S. at pp. 167-168.) The court then explained that “the Sixth Amendment does not countenance legislative encroachment on the jury‘s traditional domain” (Ice, at p. 168, citing Apprendi, supra, 530 U.S. at p. 497); that the appropriate consideration in Apprendi was therefore “whether the finding of a particular fact was understood as within ‘the domain of the jury... by those who framed the Bill of Rights...‘” [(Harris v. United States (2002) 536 U.S. 545, 557 [153 L.Ed.2d 524, 122 S.Ct. 2406])]” (Ice, at p. 168); and that “[i]n undertaking this inquiry, we remain cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. [(Patterson v. New York (1977) 432 U.S. 197, 201 [53 L.Ed.2d 281, 97 S.Ct. 2319])]” (Ice, at p. 168.)
The high court further explained, “These twin considerations—historical practice and respect for state sovereignty—counsel against extending Apprendi‘s rule to the imposition of [consecutive] sentences...” because “[t]he decision to impose sentences consecutively is not within the jury function that ‘extends down centuries into the common law.’ Apprendi, 530 U.S., at 477.” (Ice, supra, 555 U.S. at p. 168.) The court observed that, historically, “the jury played no role in the decision to impose sentences consecutively or concurrently. Rather, the choice rested exclusively with the judge.” (Ibid.) “In
The court distinguished its decision in Cunningham, supra, 549 U.S. 270, explaining why that decision “[did] not control” on the facts before it. (Ice, supra, 555 U.S. at p. 170.) “[W]e held in Cunningham that the facts permitting imposition of an elevated ‘upper term’ sentence for a particular crime fell within the jury‘s province. [Citation.] The assignment of such a finding to the sentencing judge implicates Apprendi‘s core concern: a legislative attempt to ‘remove from the [province of the] jury’ the determination of facts that warrant punishment for a specific statutory offense. Apprendi, 530 U.S., at 490 (internal quotation marks omitted). We had no occasion to consider the appropriate inquiry when no erosion of the jury‘s traditional role was at stake. Cunningham thus does not impede our conclusion that, as Apprendi‘s core concern is inapplicable to the issue at hand, so too is the Sixth Amendment‘s restriction on judge-found facts.” (Ice, supra, 555 U.S. at p. 170.)
The court in Ice reasoned further, “States’ interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that [the defendant] requests. Beyond question, the authority of States over the administration of their criminal justice systems lies at the core of their sovereign status. [Citation.] We have long recognized the role of the States as laboratories for devising solutions to difficult legal problems. [Citation.] This Court should not diminish that role absent impelling reason to do so.” (Ice, supra, 555 U.S. at pp. 170–171.)
Finally, the high court in Ice cautioned, “States currently permit judges to make a variety of sentencing determinations other than the length of incarceration. Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution. [Citation.] Intruding Apprendi‘s rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings.” (Ice, supra, 555 U.S. at pp. 171-172.)
As pointed out (and criticized) by the dissent in Ice, the focus of the majority‘s rationale was not on whether the trial court‘s finding of facts
This narrowed scope and proper focus of Apprendi‘s rule was again highlighted in Southern Union Co. v. United States (2012) 567 U.S. 343 [183 L.Ed.2d 318, 132 S.Ct. 2344] (Southern Union). In that case, the high court held that “the rule of Apprendi applies to the imposition of criminal fines.” (Id. at p. 350 [132 S.Ct. at p. 2357].) The court based its holding on “ample historical evidence showing that juries routinely found facts that set the maximum amounts of fines.” (Id. at p. 348 [132 S.Ct. at p. 2356].) The court explained that “the salient question here is what role the jury played in prosecutions for offenses that did peg the amount of a fine to the determination of specified facts—often, the value of damaged or stolen property. [Citation.] Our review of state and federal decisions discloses that the predominant practice was for such facts to be alleged in the indictment and proved to the jury. [Citations.]” (Id. at pp. 344, 345 [132 S.Ct. at pp. 2353-2354], italics added.) The court concluded that criminal fines, like imprisonment or a death sentence, constituted a form of punishment at common law, in which the jury traditionally determined the underlying factual basis. (Id. at pp. 343-344 [132 S.Ct. at pp. 2350–2351].) The court in Southern Union reiterated that “the scope of the constitutional jury right must be informed by the historical role of the jury at common law. ” (Id. at p. 353 [132 S.Ct. at p. 2353], quoting Ice, supra, 555 U.S. at p. 170; see Blakely, supra, 542 U.S. at pp. 301-302; Apprendi, supra, 530 U.S. at pp. 477-484.)
The rationale and holding of Ice compel the conclusion that defendant‘s discretionary registration order, based on factual findings made by the court pursuant to statute (
Instead, both residency restrictions and underlying sex offender registration requirements are modern regulatory sentencing imperatives unknown at common law. They are akin to “a variety of sentencing determinations other than the length of incarceration,” of relatively recent vintage, in which “[t]rial judges often find facts about the nature of the offense or the character of the defendant“—such as “the length of supervised release following service of a prison sentence... [and] required attendance at drug rehabilitation programs or terms of community service.” (Ice, supra, 555 U.S. at p. 171.) They are additional examples of “sentencing choices or accoutrements” (id. at p. 172) in which juries have played no historical role, and which do not implicate the Sixth Amendment jury trial guarantee within the meaning of Apprendi.8
The fact that any obligation to comply with the residency restrictions follows from the sex offender‘s status as a section 290 registrant and the statutory imperative of
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. The facts bearing on such a predictive assessment “could substantially prejudice the defense at the guilt phase of a trial. As a result, bifurcated... trials might often prove necessary.” (Ice, supra, 555 U.S. at p. 172.) As in Ice, “[w]e will not so burden [our] trial courts absent any genuine affront to Apprendi‘s instruction.” (Ibid.)11
The Court of Appeal did not consider the impact of the holding in Ice, supra, 555 U.S. 160, on defendant‘s Apprendi claim. We have done so. Because there is no common law jury trial tradition related to sex offender
with respect to monetary fines in particular, because the constitutional right to a jury “‘must be informed‘” by common law tradition. (Southern Union, supra, 567 U.S. at p. 353, quoting Ice, supra, 555 U.S. at p. 170.) The majority then engaged in its own careful historical examination to assure itself that juries had indeed commonly found the facts necessary to determine the permissible amounts of criminal fines. (Southern Union, supra, at pp. 348–352 [132 S.Ct. at pp. 2353–2356].) Here, by contrast, it is manifest that juries had no traditional role in the imposition of modern sentencing options, such as sex offender residency restrictions, that were unknown at common law.
B. Residency restrictions as “penalty for a crime.”
In any event, even if applicable to defendant, the residency restrictions of Jessica‘s Law are not, on their face, an added “penalty” for his conviction to which Apprendi applies. Like sex offender registration requirements, the restrictions are not intended as punishment or retribution for the offense or offenses that led to their imposition. Rather, their purpose is to serve a legitimate regulatory goal—reducing the opportunity for persons convicted of sexually related crimes, who are at large in the community but still deemed dangerous, to reoffend in the future. The restrictions may lead to significant disabilities in individual cases, but in the abstract, they do not so resemble historical forms of punishment, and are not so clearly punitive in effect, as to override their regulatory aim. For this separate reason, Apprendi does not require that they be justified at the outset by jury findings.
Recently rejecting an argument that Apprendi is violated when statutory sex offender registration is imposed solely on the basis of judge-made findings, we observed, “[a]s we have explained, ‘sex offender registration is not considered a form of punishment under the state or federal Constitution [citations]....’ (Hofsheier, supra, 37 Cal.4th at p. 1197; see also Smith v. Doe[, supra,] 538 U.S. 84, 105-106... [sex offender registration is not punishment for purposes of the ex post facto clause].) Accordingly, Apprendi‘s requirement that ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt’ (Apprendi, at p. 490) has no application here. [Citations.]” (Picklesimer, supra, 48 Cal.4th at pp. 343-344.)
This analysis—and in particular, the citation to Smith v. Doe—signaled that, when addressing Apprendi challenges to restrictions on convicted sex offenders, we are guided by the factors Smith v. Doe identified as relevant to determining whether attempts to control dangerous sex criminals constitute punishment. We adopt that procedure here.
In doing so, we begin with the settled principle that in the interest of protecting public safety, “an imposition of restrictive measures on sex offenders adjudged to be dangerous is ‘a legitimate nonpunitive governmental objective and has been historically so regarded.’ [Citation.]” (Smith v. Doe,
Of course, “[i]f the intention... was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the... scheme is ‘so punitive either in purpose or effect as to negate [the State‘s] intention’ to deem it ‘civil.’ [Citation.] Because we ‘ordinarily defer to the legislature‘s stated intent,’ [citation], ‘“only the clearest proof” will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,’ [citations].” (Smith v. Doe, supra, 538 U.S. 84, 92.)
“In analyzing the effects of the [legislative] [a]ct, we refer to the seven factors noted in Mendoza-Martinez, [supra,] 372 U.S. 144, 168-169 [9 L.Ed.2d 644, 83 S.Ct. 554]... as a useful framework.... The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.” (Smith v. Doe, supra, 538 U.S. 84, 97.) We analyze these factors “in relation to the statute on its face.” (Mendoza-Martinez, supra, 372 U.S. at p. 169.)12
Because of the structure and scope of Proposition 83, the measure did not specifically state why the voters adopted the residency restrictions in particular. The initiative included wide-ranging provisions, some clearly punitive, to combat the problem of sex offender recidivism. Besides establishing the residency restrictions now set forth in
The findings set forth in Proposition 83 suggest that, overall, the electorate had a mix of punitive, deterrent, and protective motives. The measure they adopted was officially titled The Sexual Predator Punishment and Control Act: Jessica‘s Law. (Voter Information Guide, supra, text of Prop. 83, § 1, p. 127, italics added.) It included statements that California “places a high priority on maintaining public safety through . . . laws that deter and punish criminal behavior.” (Id., § 2, subd. (a), italics added.) It declared that “Californians have a right to know about the presence of sex offenders in their communities, near their schools, and around their children” (id., subd. (g), p. 127), but “must also take additional steps to monitor sex offenders, to protect the public from them, and to provide adequate penalties for and safeguards against sex offenders, particularly those who prey on children” (id., subd. (h), p. 127, italics added). With the changes incorporated in Proposition 83, the measure averred, “Californians will be in a better position to keep themselves, their children, and their communities safe from the threat posed by sex offenders.” (Voter Information Guide, supra, text of Prop. 83, § 2, subd. (e), p. 127.) Thus, Proposition 83 asserted, “It is the intent of the People in enacting this measure to help Californians better protect themselves, their children, and their communities; it is not the intent of the People to embarrass or harass persons convicted of sex offenses.” (Voter Information Guide, supra, text of Prop. 83, § 2, subd. (f), p. 127.)
The protective aims of the residency restrictions in particular come into clearer focus in the ballot arguments by supporters of Proposition 83. The argument in favor of the measure asserted that “Proposition 83—Jessica‘s Law—will protect our children by keeping child molesters . . . away from schools and parks” and will “[c]reate predator free zones around schools and parks to prevent sex offenders from living near where our children learn and play.” (Voter Information Guide, supra, argument in favor of Prop. 83, p. 46, italics & some capitalization omitted.) According to the proponents, “Proposition 83 means dangerous child molesters will be kept away from our children. . . .” (Ibid., italics omitted.) In their rebuttal to the opponents’ argument, supporters of Proposition 83 insisted that “Jessica‘s Law will stop dangerous sex offenders from living near schools and parks where they can stalk and prey on our children.” (Voter Information Guide, rebuttal to argument against Prop. 83, p. 47, some capitalization omitted.)
These provisions strongly indicate that any restrictions imposed by the electorate on where registered sex offenders may live were not intended to add to the punishment for a criminal conviction. Rather, the clear aim was to promote public safety by ensuring that children could learn and play in zones where they would not encounter registered sex offenders who lived nearby.
Indeed, “where a legislative restriction ‘is an incident of the State‘s power to protect the health and safety of its citizens,’ it will be considered ‘as
Accordingly we, like the Court of Appeal, are persuaded that the electorate had a regulatory, nonpunitive purpose. We therefore consider whether the restrictions, if generally applicable to nonparolee registered sex offenders in California, nonetheless have such a necessary punitive effect as to override this nonpunitive intent, and thus to require jury findings before they can be imposed. We conclude they do not.
When addressing the issue of punitive effect, the Court of Appeal was strongly influenced by the degree of affirmative disability or restraint it perceived in the residency restrictions. The Court of Appeal stressed that the restrictions include no “grandfather provisions” or grace periods. Hence, the court observed, a registered sex offender cannot stay in his or her own home if it lies within a prohibited area, and an offender must move from an already established residence if a school or park later opens nearby.13 In such a case, the court noted, the offender and his or her family must either relocate as a group or live apart. Moreover, the court pointed out, it may be difficult to find compliant housing “given the sweeping nature of the zone[s] of exclusion,” and the restricted choice of residence may also affect the offender‘s employment and his or her access to medical care, rehabilitation programs, and elder assistance. Indeed, the court suggested, the constant threat of ouster, and of difficulty in relocating, ” ‘seems a significant deprivation of [registered sex offenders‘] liberty and property interests. It sentences them to a life of transience, forcing them to become nomads.’ ” (Quoting Mikaloff v. Walsh (N.D. Ohio, Sept. 4, 2007, No. 5:06-CV-96) 2007 WL 2572268, p. *10 (Mikaloff).) Further, the court believed, these features of the residency restrictions render them “akin to banishment, a traditional form of punishment.”
There is no doubt that the residency restrictions of Jessica‘s Law can produce significant difficulties and inconveniences in particular areas and individual cases. (See fn. 15, post.) But we are not persuaded that they so resemble traditional punishment, or are necessarily so harsh, as to compel a conclusion that their punitive effect overrides their regulatory intent.
Nor are the restrictions akin to banishment. One subject to them is not thereby excluded from the state or any part thereof. They do not dictate where he or she may travel, visit, shop, eat, work, or play. Even the law‘s domiciliary prohibitions are, by their terms, confined to specified geographic areas relevant to the regulatory purpose they serve. Hence, they do not, on their face, meet or approach the traditional definition of banishment—the entire dismissal, expulsion, or casting out from one‘s community, and into exile. (See, e.g., Black‘s Law Dict. (10th ed. 2014) p. 695, col. 1 [“Exile” is “[e]xpulsion from a country, esp. from the country of one‘s origin or longtime residense“]; 1 Oxford English Dict. (2d ed. 1989) p. 929, col. 2 [“Banishment” is “[t]he action of authoritatively expelling [one] from the country; a state of exile; expatriation“; “[t]he action of peremptorily sending [one] away; a state of enforced absence; dismissal.“].)14
Further, the restrictions do not take on the character of punishment by comparison to forms of conditional, supervised postconviction release, such as probation and parole, which might be considered punitive. (See Smith v. Doe, supra, 538 U.S. at p. 101; cf. People v. Nuckles (2013) 56 Cal.4th 601, 609 [155 Cal.Rptr.3d 374, 298 P.3d 867].) As applied to nonparolees such as defendant, the residency restrictions involve no oversight or supervision by penal authorities. Their violation cannot result in revocation of a conditional release; rather, the only arguable sanction is “a [criminal] proceeding separate
Similarly, there is little relevance to the fact that the restrictions, like criminal punishment, are aimed at deterring future crimes, and might have that effect. “Any number of governmental programs might deter crime without imposing punishment. ‘To hold that the mere presence of a deterrent purpose renders such sanctions “criminal” . . . would severely undermine the Government‘s ability to engage in effective regulation.’ [Citations.]” (Smith v. Doe, supra, 538 U.S. at p. 102.) Indeed, the primary deterrence of the residency restrictions is not a threat that wrongdoing will be met with sanctions—the premise of punishment. Rather, it is simply a way to reduce registered sex offenders’ contact with children on whom they might prey by ensuring that such persons will not live near where children routinely gather.
Finally, the real-life consequences of the residency restrictions of Jessica‘s Law may vary widely from person to person, and from case to case. Unlike registration requirements, which demand periodic affirmative acts from all registrants throughout their lifetimes (see Hofsheier, supra, 37 Cal.4th at p. 1196), the residency restrictions impose no additional obligations on registrants whose domiciles of choice are, and remain, in compliance with Jessica‘s Law.15 In sum, these restrictions do not necessarily inflict such onerous disabilities and restraints, or otherwise so resemble common or traditional forms of punishment, that they must be so labeled, for purposes of Apprendi, despite their regulatory and nonpunitive intent.
We are further persuaded, as the Court of Appeal conceded, that the residency restrictions are rationally related to a legitimate regulatory and
As the high court has explained, a law‘s “rational connection to a nonpunitive purpose is a ‘most significant’ factor in our determination that the statute‘s effects are not punitive.” (Smith v. Doe, supra, 538 U.S. at p. 102.) Here, the Court of Appeal acknowledged that “[t]he residency restriction[s] [of Jessica‘s Law are] rationally connected to the nonpunitive purpose of protecting children in and around schools and parks.” This factor, the court agreed, “weighs against punitive effect.” In so concluding, the Court of Appeal was surely correct.
Nonetheless, the Court of Appeal found that the residency restrictions suggest punishment because they are overbroad for their ostensible regulatory purpose. The court reasoned that “[b]arring all registered sex offenders from living near any schools and parks—without considering whether their offenses involved children, whether the exclusion zone provides adequate alternative housing for them, or whether their exclusion from living near schools and parks [actually] provides substantial protection to our children—is excessive to the nonpunitive purpose of child protection.”
But “[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” (Smith v. Doe, supra, 538 U.S. at p. 103Ibid.) Such is not the case here.
At the outset, the residency restrictions of Jessica‘s Law are not overbroad, and thus punitive, simply because they do not narrow the affected class to those registered sex offenders who are most likely to attack children. Citing studies similar to those later invoked by Proposition 83 itself, the court in Smith v. Doe noted that the risk of recidivism among sex offenders generally “is ‘frightening and high’ ” (Smith v. Doe, supra, 538 U.S. at p. 103). Consistent with “grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class,” the court observed, a legislative body can reasonably conclude “that a conviction for a sex offense provides evidence of substantial risk of recidivism.” (Ibid.) Thus, a state is not precluded “from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.” (Ibid.)
Similar principles apply to California‘s scheme for sex offender registration, to which the residency restrictions of Jessica‘s Law may attach. An
As particularly relevant to the issue before us here, sex offender registration may be imposed in other cases only where, after conducting an individualized assessment, a court finds that the nature of the defendant‘s crime, and other information about the offender, indicate that he or she, in particular, is sexually dangerous. Such findings were, of course, made in this case, after defendant was convicted of assaulting a 12-year-old girl. Here too, the voters could reasonably seek, by nonpunitive regulation, to protect vulnerable children against the risk of recidivism by such an offender.
Nor is it fatal to a finding of legitimate regulation that the residency restrictions are not necessarily the most efficacious and least disruptive approach to affording such protection. “The excessiveness inquiry . . . is not an exercise in determining whether the [adopter of legislation] has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective.” (Smith v. Doe, supra, 538 U.S. at p. 105.)16
The residency restrictions of Jessica‘s Law meet this standard. Defendant fails to establish, by the “clearest proof,” that the restrictions are facially punitive in intent or effect. For this independent reason, we conclude that they are not subject to the jury trial provisions of Apprendi.17
Even were we to determine, under Apprendi, that the residency restrictions of Jessica‘s Law cannot apply to defendant because they are not supported by jury findings, it would not follow that the registration order imposed on defendant by the trial judge under
CONCLUSION
The judgment of the Court of Appeal is reversed insofar as it modified defendant‘s conviction by striking the sex offender registration requirement, and is otherwise affirmed.
Cantil-Sakauye, C. J., Chin, J., Corrigan, J., and Grover, J.,* concurred.
LIU, J., Concurring and Dissenting.—The jury in this case acquitted defendant Steven Lloyd Mosley of committing a lewd act on a child under the age of 14 but convicted him of simple assault. Thereafter the trial judge found that Mosley “committed the offense as a result of sexual compulsion or for purposes of sexual gratification” and ordered him to register as a sex offender. (
1041-1043 [ex post facto challenge]; State v. Seering (Iowa 2005) 701 N.W.2d 655, 667-669 [ex post facto challenge]; but see, e.g., Mikaloff, supra, 2007 WL 2572268 at pp. *3-*12 [upholding ex post facto challenge to Ohio residency restrictions]; State v. Pollard (Ind. 2009) 908 N.E.2d 1145, 1148-1154 [finding residency restrictions punitive as applied to offender who owned and was living in noncompliant home when restrictions were adopted]; Commonwealth v. Baker (Ky. 2009) 295 S.W.3d 437, 443-447 [upholding ex post facto challenge].)
*Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I.
In this appeal, the Attorney General argues that
“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality” unless those questions are “unavoidable.” (Spector Motor Co. v. McLaughlin (1944) 323 U.S. 101, 105 [89 L.Ed. 101, 65 S.Ct. 152]; see Bond v. United States (2014) 572 U.S. ___ [189 L.Ed.2d 1, 134 S.Ct. 2077, 2087]; Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445-446 [99 L.Ed.2d 534, 108 S.Ct. 1319]; Escambia County v. McMillan (1984) 466 U.S. 48, 51 [80 L.Ed.2d 36, 104 S.Ct. 1577].) This doctrine promotes judicial restraint and minimizes the potential for friction between the judiciary and the political branches. (See National Federation of Independent Business v. Sebelius (2012) 567 U.S. ___ [183 L.Ed.2d 450, 132 S.Ct. 2566, 2593].) Like the high court, this court has regularly said that we will “not reach constitutional questions unless absolutely required to do so.” (People v. Williams (1976) 16 Cal.3d 663, 667 [128 Cal.Rptr. 888, 547 P.2d 1000]; see Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1102 [77 Cal.Rptr.3d 287, 183 P.3d 1250]; People v. Brown (2003) 31 Cal.4th 518, 534
Against this mountain of precedent, the court invents a doctrine of statutory avoidance: It avoids an issue of statutory interpretation in order to resolve the case on constitutional grounds. But, as the court does not dispute, no such doctrine appears in the case law or in any treatise on statutory interpretation. (See, e.g., Singer & Singer, 2A-3 Sutherland Statutes and Statutory Construction (7th ed. 2014) §§ 45:1-65:5; Scalia & Garner, Reading Law: The Interpretation of Legal Texts (2012).) The recognized canons of construction are so wide-ranging that it has been said “for every canon . . . there is an equal and opposite canon.” (Posner, Statutory Interpretation—in the Classroom and in the Courtroom (1983) 50 U.Chi. L.Rev. 800, 806, citing Llewellyn, The Common Law Tradition: Deciding Appeals (1960) pp. 521-535.) And yet, the canon that a court should avoid a constitutional issue if the case can be decided on statutory grounds has no complement that says a court should avoid a statutory issue if the case can be decided on constitutional grounds. Such an approach has long been rejected. (See Steamship Co. v. Emigration Commissioners (1885) 113 U.S. 33, 39 [28 L.Ed. 899, 5 S.Ct. 352].)
Today‘s decision says we need not decide the statutory question “in advance of any concrete evidence of prosecutors’ intent to press charges against nonparolee sex offender registrants for noncompliance with the residency restrictions.” (Maj. opn., ante, at p. 1054.) In essence, the court says the statutory issue is not ripe for decision, even as it insists that the constitutional issue arising from a hypothetical reading of the statute is ripe. (Maj. opn., ante, at pp. 1054-1055, fn. 7.) But the Attorney General acknowledged at oral argument that she knew of at least one case in which a probationer had been charged with violating the statute. And in any event, the statutory question is squarely presented by Mosley‘s claim that section 3003.5(b) on its face imposes punishment on all registered sex offenders. That claim—unlike the “constitutional challenges to
Had the court properly engaged the statutory question, it would have found a clear answer in the text of
The Attorney General contends that a literal reading of section 3003.5(b) would undermine the statute‘s purpose of protecting the public and would clash with other provisions of section 3003.5. According to her briefing, reading section 3003.5(b) to apply to any registered sex offender, not just parolees, would increase the rate of transience among sex offenders. This would make monitoring and rehabilitation more difficult, thus inhibiting efforts to solve crimes and reduce recidivism. Moreover, the Attorney General notes that section 3003.5 appears in a chapter of the
But there is no inconsistency in section 3003.5 between subdivision (a), which sets forth a residency restriction as a parole condition, and subdivision (b), which sets forth a different residency restriction that applies to parolees and nonparolees alike. Moreover, whether or not applying a residency restriction to all registered sex offenders is an effective way to promote public safety, the voters evidently believed it would be.
To the extent there is any ambiguity in the statute, we may look “to extrinsic sources such as ballot summaries and arguments for insight into the voters’ intent.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321 [120 Cal.Rptr.3d 741, 246 P.3d 877].) Nothing in the ballot materials on Jessica‘s Law suggests that the voters intended to limit section 3003.5(b) to parolees. The official summary of the measure says Proposition 83 “[p]rohibits registered sex offenders from residing within 2,000 feet of any school or park.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) official title and
II.
Having determined that section 3003.5(b) applies to Mosley, I now turn to his Apprendi claim. Today‘s decision holds that “the effect of Apprendi on the residency restrictions of Jessica‘s Law is obviated by a post-Apprendi decision, Oregon v. Ice (2009) 555 U.S. 160 [172 L.Ed.2d 517, 129 S.Ct. 711] (Ice).” (Maj. opn., ante, at p. 1049.) But the court misreads the Apprendi line of cases, including Ice.
Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) The high court reached this holding in the context of a New Jersey hate crime statute that prescribed longer sentences if a judge found by a “preponderance of the evidence” that the defendant committed an offense ” ‘with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ ” (Id. at pp. 468-469.) Allowing the imposition of this enhanced penalty based on judicial factfinding violated the defendant‘s right to a jury trial under the Sixth Amendment to the
Subsequently, the high court in Ice held that, while a jury must determine the “facts that warrant punishment for a specific statutory offense,” a judge may determine the facts that warrant consecutive rather than concurrent sentences for multiple offenses. (Oregon v. Ice, supra, 555 U.S. at p. 170 (Ice).) Ice explained that Apprendi‘s “animating principle is the preservation of the jury‘s historic role as a bulwark between the State and the accused at the trial for an alleged offense. [Citation.] Guided by that principle, our opinions make clear that the Sixth Amendment does not countenance legislative encroachment on the jury‘s traditional domain. [Citation.] We accordingly considered whether the finding of a particular fact was understood as within ‘the domain of the jury . . . by those who framed the Bill of Rights.’ [Citation.]” (Ice, supra, 555 U.S. at p. 168.)
Today‘s opinion says that “[h]ere, as in Ice, there is no jury tradition connected to the sentencing decision at issue.” (Maj. opn., ante, at p. 1060.) “Instead, both residency restrictions and underlying sex offender registration requirements are modern regulatory sentencing imperatives unknown at common law. . . . They are additional examples of ‘sentencing choices or accoutrements’ ([Ice, supra, 555 U.S.] at p. 172) in which juries have played no historical role, and which do not implicate the Sixth Amendment jury trial guarantee within the meaning of Apprendi.” (Id. at p. 1060.) This is unpersuasive for several reasons.
As an initial matter, the high court in Ice observed that all of its prior decisions applying Apprendi‘s rule “involved sentencing for a discrete crime, not—as [in Ice]—for multiple offenses different in character or committed at different times.” (Ice, supra, 555 U.S. at p. 167.) Whereas “the determination of facts that warrant punishment for a specific statutory offense” fell within the jury‘s traditional role (id. at p. 170), “administering multiple sentences” on multiple offenses did not (id. at p. 168). The case before us involves sentencing for a specific statutory offense, not multiple offenses.
More fundamentally, today‘s decision misreads Ice when it reasons that, like the administration of multiple sentences, “sex offender registration and residency requirements are not sentencing matters in which, historically, the jury has played any traditional role at common law.” (Maj. opn., ante, at pp. 1059-1060.) In saying that “the scope of the constitutional jury right must be informed by the historical role of the jury at common law” (Ice, supra, 555 U.S. at p. 170), Ice did not suggest that the scope of the Sixth Amendment turns on whether common law juries imposed particular sentences. Rather, Ice made clear that the historical inquiry focuses on “whether the finding of a particular fact was understood as within ‘the domain of the jury.’ ” (Ice, at p. 168, italics added; see id. at p. 170 [”Apprendi‘s core concern” is “a legislative attempt to ‘remove from the [province of the] jury’ the determination of facts that warrant punishment for a specific statutory offense.” (italics added)].) The fact that juries historically did not make a particular sentencing decision was evidence that a defendant had no entitlement to have a jury
In Southern Union Co. v. United States (2012) 567 U.S. 343 [183 L.Ed.2d 318, 132 S.Ct. 2344] (Southern Union), the high court reaffirmed that the salient historical inquiry is whether the determination of facts authorizing a particular sentence lay within the jury‘s domain. Southern Union involved a federal statute pegging criminal fines to the duration of the violation. The question was “whether [Apprendi‘s] rule applies to sentences of criminal fines.” (Id. at pp. 348-349.) The high court held that although some fines are not substantial enough to trigger the protections of the Sixth Amendment, “[w]here a fine is substantial enough . . . , Apprendi applies in full.” (Southern Union, at p. 352.) In so holding, the high court reiterated that ”Apprendi‘s ‘core concern’ is to reserve to the jury ‘the determination of facts that warrant punishment for a specific statutory offense.’ Ice, 555 U.S., at 170.” (Id. at p. 350.) Southern Union further explained: “In stating Apprendi‘s rule, we have never distinguished one form of punishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal ‘sentence[s],’ ‘penalties,’ or ‘punishment[s]‘—terms that each undeniably embrace fines. [Citations.]” (Id. at p. 351.)
The high court acknowledged that “judges in the colonies and during the founding era ‘possessed a great deal of discretion’ in determining whether to impose a fine and in what amount.” (Southern Union, supra, 567 U.S. at p. 353.) But the fact that historically “[t]he judge, not the jury, would normally determine fine-related sentencing facts” (id. at p. 369 (dis. opn. of Breyer, J.)) was not sufficient to make Apprendi inapplicable to criminal fines. Instead, the high court said “the salient question here is what role the jury played in prosecutions for offenses that did peg the amount of a fine to the determination of specified facts—often, the value of damaged or stolen property.” (Id. at p. 353.) On this question, the court concluded that “juries routinely found facts that set the maximum amounts of fines” (id. at p. 356), citing several historical examples (id. at pp. 353-354). Although none of the examples concerned the jury‘s role in determining the duration of a criminal violation, the court did not hesitate to conclude that the Sixth Amendment requires such a factual determination to be made by a jury.
Thus, the applicability of Apprendi‘s rule does not depend on “distinguish[ing] one form of punishment from another” (Southern Union, supra, 567 U.S.
Nor does it help to call sex offender registration and residency requirements ” ‘sentencing . . . accoutrements’ ” akin to ” ‘supervised release following service of a prison sentence’ ” or ” ‘required attendance at drug rehabilitation programs or terms of community service.’ ” (Maj. opn., ante, at p. 1060, quoting Ice, supra, 555 U.S. at p. 171.) The high court in Southern Union suggested that this language from Ice was dicta and “more likely refers to the routine practice of judges’ imposing [sentencing options] from within a range authorized by jury-found facts“—a practice that “poses no problem under Apprendi because the penalty does not exceed what the jury‘s verdict permits.” (Southern Union, supra, 567 U.S. at p. 352, fn. 5.) The essential inquiry in Apprendi, as in Southern Union, was whether the “legislative scheme . . . removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” (Apprendi, supra, 530 U.S. at pp. 482-483; see Southern Union, at pp. 350-351.)
The case before us is squarely analogous to Apprendi in a crucial respect: Imposition of the sex offender registration requirement and residency restriction, like the hate crime sentence enhancement in Apprendi, turns on a finding of the defendant‘s motive or intent. (See Apprendi, supra, 530 U.S. at p. 494 [“it does not matter whether the required finding is characterized as one of intent or of motive“].)
In sum, the circumstances here directly implicate Apprendi‘s rule. The jury acquitted Mosley of committing a lewd act on a child under the age of 14—an offense requiring proof of sexual intent (
III.
Turning to this last question, I agree with the Court of Appeal that the residency restriction is punitive based on the factors set forth in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169 [9 L.Ed.2d 644, 83 S.Ct. 554] (Mendoza-Martinez). Applying those factors, the high court in Smith v. Doe (2003) 538 U.S. 84, 97-106 (Smith) held that Alaska‘s sex offender registration scheme was not punitive for purposes of the ex post facto clause, and this court has reached the same conclusion about California‘s sex offender registration requirements for purposes of the Sixth Amendment (People v. Picklesimer (2010) 48 Cal.4th 330, 343-344 [106 Cal.Rptr.3d 239, 226 P.3d 348] (Picklesimer)). But section 3003.5(b)‘s residency restriction goes beyond registration requirements and imposes more severe burdens that drive the analysis toward a different result.
In first determining the voters’ intent behind section 3003.5(b), today‘s opinion acknowledges that Proposition 83 “did not specifically state why the voters adopted the residency restrictions in particular” and that Proposition 83‘s official title and findings “suggest that, overall, the electorate had a mix of punitive, deterrent, and protective motives.” (Maj. opn., ante, at pp. 1063-1064.) Nevertheless, the court puts decisive weight on the ballot arguments of Proposition 83‘s supporters, while dismissing the fact that Proposition 83 placed the residency restriction in the
On balance, I believe the voters primarily intended section 3003.5(b) as a regulatory measure. But this nonpunitive intent is not stated as clearly or as conclusively as when a legislature “expresse[s] the objective of the law in the statutory text itself.” (Smith, supra, 538 U.S. at p. 93.) As a result, the Court of Appeal was right to question whether the ” ’ “clearest proof” ’ ” of punitive effect is necessary to outweigh the voters’ apparent intent. (Id. at p. 92; see id. at p. 110 (conc. opn. of Souter, J.); id. at pp. 114-115 (dis. opn. of Ginsburg, J.).) Ultimately, however, we need not resolve the appropriate standard because even if the clearest proof is required, the Mendoza-Martinez factors decisively show that section 3003.5(b) is punitive in effect.
Here, as in Smith, “[t]he factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.” (Smith, supra, 538 U.S. at p. 97.) These factors are ” ‘neither exhaustive nor dispositive,’ ” but are ” ‘useful guideposts.’ ” (Ibid.) In applying these factors, we must evaluate the effects of section 3003.5(b) in light of its applicability to all registered sex offenders, not just offenders like Mosley whose victims were children. (See Mendoza-Martinez, supra, 372 U.S. at p. 169 [“these factors must be considered in relation to the statute on its face“].)
In assessing whether a residency restriction “has been regarded in our history and traditions as a punishment” (Smith, supra, 538 U.S. at p. 97), the Court of Appeal said it “is sufficiently close to banishment, property deprivation, and a probation condition to be deemed traditional punishment.” These semblances are discernible but inexact. Unlike banishment, which directly forbids offenders from “return[ing] to their original community” (Smith, at p. 98), section 3003.5(b) declares certain areas off-limits for establishing a home but not for any other purpose. Unlike “the punitive confiscation of property,” which traditionally involves a fine or seizure of land specifically intended to burden the defendant‘s property interests (Nixon v. Administrator of General Services (1977) 433 U.S. 425, 474 & fn. 38 [53 L.Ed.2d 867, 97 S.Ct. 2777]), the deprivation of property interests worked by section 3003.5(b) seems incidental to the statute‘s main purpose of restricting liberty. And unlike probation or parole, which involves conditional release and ongoing
By contrast, section 3003.5(b) clearly “imposes an affirmative disability or restraint” that suggests its punitive character. (Smith, supra, 538 U.S. at p. 97.) “Here, we inquire how the effects of the [statute] are felt by those subject to it.” (Id. at pp. 99-100.) Unlike a registration requirement, which “imposes no physical restraint” and “leaves [sex offenders] free to change . . . residences” (id. at p. 100), the residency restriction directly limits where sex offenders may live and establish a home. In addition, whereas the registration scheme in Smith disclosed and disseminated information that was “already a matter of public record” (id. at p. 101), section 3003.5(b) imposes on sex offenders a burden that is separate from and additional to all other requirements with which they must comply.
Moreover, section 3003.5(b) predictably results in severe geographic limitations on compliant housing in densely populated areas, as our decision today in In re Taylor (2015) 60 Cal.4th 1019 [184 Cal.Rptr.3d 682, 343 P.3d 867] (Taylor) confirms. (See id. at pp. 1039-1040 [section 3003.5(b) “effectively barred petitioners access to approximately 97 percent of the multifamily rental housing units in San Diego County that would otherwise be available to them“]; see also Cal. Sex Offender Management Bd., Homelessness Among California‘s Registered Sex Offenders: An Update (Sept. 2011) p. 7 (hereafter 2011 Update) [“A number of metropolitan areas have developed maps showing the areas where, according to the language of Prop 83, affected sex offenders may not live. Observers agree that the vast majority of potential housing locations in urban areas are now included in the off-limits territory. San Francisco, for example, has virtually no realistic places where a paroled sex offender may legally live.“].)
The breadth of the restriction has “led to dramatically escalating levels of homelessness among sex offenders.” (2011 Update, supra, at p. 1; see id. at p. 7 [sex offenders registered as transient nearly tripled from 2,050 in 2007 (just after Jessica‘s Law was passed) to 6,012 in 2011]; Taylor, supra, 60 Cal.4th at pp. 1040-1041.) For many sex offenders, the residency restriction also adversely affects access to transportation, employment opportunities, health care, drug and alcohol rehabilitation programs, and other social services. (See Taylor, at p. 1040.) And even among those who are able to obtain compliant housing and access to needed services, a restriction on where one may choose to establish a home can itself work a significant deprivation. (See Kelo v. New London (2005) 545 U.S. 469, 494-495 [162 L.Ed.2d 439, 125 S.Ct. 2655] (dis. opn. of O‘Connor, J.); Cleburne v. Cleburne Living Center, Inc. (1985)
Today‘s opinion acknowledges the realities described in Taylor, which addressed an as-applied challenge, but disclaims any awareness of how section 3003.5(b) generally affects sex offenders throughout the state. (Maj. opn., ante, at p. 1067, fn. 15.) The court says the terms of the residency restriction are “potentially burdensome” but “limited” because they “do not regulate a registered sex offender‘s daily activities” and “do not dictate where he or she may travel, visit, shop, eat, work, or play.” (Id. at p. 1066.) This blinks reality and common sense.
If the only real effect of the residency restriction were to control where sex offenders may sleep at night, leaving them free to spend their waking hours near parks and schools, then Jessica‘s Law would have been an idle enactment. Clearly, the desired and anticipated effect of the law was to keep sex offenders away from neighborhoods where children play or attend school—not just at night, but at all times. (See Voter Information Guide, supra, argument in favor of Prop. 83, p. 46 [Prop. 83 will “keep[] [child molesters] away from schools and parks” and will “[c]reate predator free zones around schools and parks” (capitalization & italics omitted)].) By prohibiting sex offenders from living near schools or parks, section 3003.5(b) has the effect of eroding or severing their ties to the community and ordinary civic life. (See Pleasant Grove City v. Summum (2009) 555 U.S. 460, 469 [172 L.Ed.2d 853, 129 S.Ct. 1125] [parks are traditional public forums ” ‘used for purposes of assembly, communicating thoughts between citizens, and discussing public questions’ “]; Cleburne, supra, 473 U.S. at p. 461, fn. 5 (conc. & dis. opn. of Marshall, J.) [group home for mentally retarded persons “was specifically located near a park, a school, and a shopping center so that its residents would have full access to the community at large“]; Evans v. Newton (1966) 382 U.S. 296, 301-302 [15 L.Ed.2d 373, 86 S.Ct. 486] [a park is a “public facility” that “serves the community” and can play “an integral part” of a city‘s activities];
The nature and severity of these burdens inform whether section 3003.5(b) “promote[s] the traditional aims of punishment—retribution and deterrence.” (Mendoza-Martinez, supra, 372 U.S. at p. 168.) Although “[a]ny number of governmental programs might deter crime without imposing punishment” (Smith, supra, 538 U.S. at p. 102), the residency restriction hardly qualifies as ordinary government regulation. As noted, whereas the registration requirement in Smith publicized “information about the individual‘s conviction [that] was already in the public domain” (id. at p. 100), the residency restriction imposes greater and qualitatively different burdens than a registration requirement. To the extent that potential offenders weigh the costs and benefits of criminal conduct, the lifetime disabilities resulting from the residency restriction substantially increase the costs of sexual offenses and thereby promote deterrence. Moreover, it is significant that section 3003.5(b) “makes no individualized determination of the dangerousness of a particular registrant. . . . When a restriction is imposed equally upon all offenders, with no consideration given to how dangerous any particular registrant may be to public safety, that restriction begins to look far more like retribution for past offenses than a regulation intended to prevent future ones.” (Commonwealth v. Baker (Ky. 2009) 295 S.W.3d 437, 444 (Baker) [finding similar residency restriction (
The remaining factors are whether section 3003.5(b) “has a rational connection to a nonpunitive purpose” and whether it “is excessive with respect to this purpose.” (Smith, supra, 538 U.S. at p. 97.) Today‘s opinion effectively collapses these two factors into one: It finds the residency restriction rationally connected to protecting children around schools and parks, and it then finds no excessiveness by analogizing the inquiry to ordinary rational basis review. (Maj. opn., ante, at p. 1069 [“The electorate could reasonably conclude . . . .“]; id. at p. 1069, fn. 16, citing FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 314 [124 L.Ed.2d 211, 113 S.Ct. 2096].) But the inquiry here focuses on the effects of the statute, not whether there is some ” ‘conceivable basis which might support it.’ ” (Beach Communications, at p. 315.) In stating that “[t]he question is whether the . . . means chosen are reasonable in light of the nonpunitive objective” (Smith, at p. 105), Smith drew no analogy between the excessiveness inquiry and rational basis review. Instead, the high court evaluated reasonableness in this context by reference to the statute‘s actual workings and empirical underpinnings (id. at pp. 103-105).
The indiscriminate character of section 3003.5(b) also stands in contrast to the differentiated approach set forth in the community notification provisions of California‘s sex offender registration statute. Under
In Smith, the high court reasoned that because sex offender registration imposes a relatively “minor” burden, “the State can dispense with individual predictions of future dangerousness” without casting into doubt the nonpunitive character of the regulatory scheme. (Smith, supra, 538 U.S. at p. 104Ibid.) Though less onerous than involuntary commitment, section 3003.5(b)‘s residency restriction is more onerous than registration. It is sufficiently onerous that “a lack of individual assessment,” which attenuates the nexus to a regulatory purpose, “render[s] the statute punitive.” (Baker, supra, 295 S.W.3d at p. 446.)
To be sure, “[t]he excessiveness inquiry . . . is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy.” (Smith, supra, 538 U.S. at p. 105.) Even so, section 3003.5(b) is sweeping and indiscriminate “in its necessary operation” (Smith, at p. 97) and imposes significant disabilities and restraints that scarcely further the statute‘s protective purpose, if at all. Section 3003.5(b)‘s residency restriction, though regulatory in intent, is punitive in effect.
This conclusion, in the context of an Apprendi claim, does not mean the residency restriction cannot validly be imposed on persons who are subject to registration under section 290.006. But it does mean the facts authorizing imposition of the restriction must be proven to a jury beyond a reasonable doubt. In this case, the residency restriction is “a penalty exceeding the maximum [Mosley] would receive if punished according to the facts reflected in the jury verdict alone.” (Apprendi, supra, 530 U.S. at p. 483.) Accordingly,
Because the residency restriction is separable from section 290‘s registration requirements, and because our precedent holds that the registration requirements are not punitive (Picklesimer, supra, 48 Cal.4th at pp. 343-344), I agree that “the judge-imposed registration order remains separately valid and extant.” (Maj. opn., ante, at p. 1070.) I thus join the court in reversing the Court of Appeal‘s judgment to the extent it relieved Mosley of the requirement that he register as a sex offender.
Werdegar, J., concurred.
Appellant‘s petition for a rehearing was denied April 29, 2015. Werdegar, J., and Liu, J., were of the opinion that the petition should be granted.