In re Alva

• Decision Date: 31 May 2001
• Docket Number: No. B142625.,B142625.
• Citation: 89 Cal.App.4th 758,107 Cal.Rptr.2d 562
• Court: California Court of Appeals Court of Appeals
• Parties: In re Leon Casey ALVA, on Habeas Corpus.

107 Cal.Rptr.2d 562

89 Cal.App.4th 758

In re Leon Casey ALVA, on Habeas Corpus.

No. B142625.

Court of Appeal, Second District, Division 3.

May 31, 2001.

Review Granted September 19, 2001.

Steven T. Flowers, Los Angeles, for Petitioner.

James K. Hahn, City Attorney, Debbie Lew, Assistant City Attorney Supervisor, and Candice I. Horikawa, Deputy City Attorney, for Respondent.

FIDLER, J.^*

PROCEDURAL HISTORY

This matter comes before us by order of our Supreme Court, directing us to issue an order to show cause limited to the issue of whether the registration required by Penal Code section 290¹ constitutes cruel and unusual punishment under either the Eighth Amendment of the United States Constitution or article I, section 17 of the California Constitution. Section 290 requires convicted sex offenders to register every California residence they have with the local police chief or sheriff. Registration is required annually, even if there is no change in residence, and registration is required for life. If, however, a person required to register for a violation of section 311.11, subdivision (a), receives a certificate of rehabilitation, the registration requirement can be eliminated. (See §§ 290.5, 1203.4 & 4852.01 through 4852.17.)

Petitioner was convicted of a misdemeanor violation of section 311.11, subdivision (a), possession of child pornography. Section 311.11, subdivision (a), in pertinent part, makes it unlawful for an individual to knowingly possess various materials knowing that it "depicts a person under the age of 18 years personally engaging in or simulating sexual conduct...." A first-time offender under this section is punishable by up to one year imprisonment in the county jail and/or a fine of $2,500. Subsequent violations of this section are felonies, punishable by up to six years in state prison. Petitioner was placed on probation for a period of 36 months on various terms and conditions, including a fine of $1,250, the requirement that he complete a therapy program aimed at sexual deviancy and especially at pedophilia, and 60 days in the county jail to be stayed permanently if he completed the therapy. Petitioner was also required to register as a sex offender pursuant to section 290.

Petitioner objected to the registration requirement, contending it constituted cruel and unusual punishment. The trial court refused to delete the registration requirement of section 290, stating: "[a]nd this court finds based upon the testimony presented and the defendant's professed interest in having sexual contact with children as young as 10, the registration is appropriate even though he did not engage in such conduct in this case." (See People v. Monroe (1985) 168 Cal.App.3d 1205, 215 Cal.Rptr. 51.) The appellate department of the Los Angeles Superior Court affirmed petitioner's conviction. This court denied the original writ of habeas corpus without an opinion. As previously indicated, our Supreme Court directed us to issue the order to show cause.

FACTS OF THE CASE

As we will discuss, infra, the facts of this case are central to our disposition. We set them forth as they are relevant to our discussion. Based upon a "We-tip" lead that identified petitioner as an individual who was producing and/or distributing child pornography, the Los Angeles Police Department instituted an undercover investigation. Detective William H. Dworin, the officer in charge of the sexually exploited child unit, led the investigation. Utilizing e-mail and recorded telephone conversations, Dworin posed as an individual who had a sexual interest in children. Dworin used the name "James." Petitioner indicated to "James" that he also had a sexual interest in boys. Detective Dworin created a fictitious 10-year old boy named "John." Dworin told petitioner he was involved in a sexual relationship with "John." Petitioner indicated to "James" that he had been looking for a man who had "the same interests as me" since he was thirteen years old. In one e-mail petitioner stated the following: "Do you think you would be interested in anyone else playing with John a bit? If necessary I could pay you cash or some other way.... Other than that I would be interested in talking and trading and also I have a boy coming out from Denver who is 8 and maybe we could trade? ..." Eventually, Dworin obtained a search warrant for petitioner's home and recovered videotapes which, among other things, depicted young boys, clearly under the age of 18 years, engaged in anal and oral sex. A small color poster of multiple small pictures, including a picture captioned "Boys Will Be Toys," depicted similar activity. The poster also included a note which read: "K.C. You need this for your collection. Don't tell anyone where you got it." When the search warrant was served, the petitioner gave these items to the police. Petitioner also posted a new e-mail that identified "James" as a police officer and stated: "Just tell him you do not like boys you only like men or women not under 18 he is a cop."

DISCUSSION

In order to determine whether the registration requirements of section 290 are cruel and unusual punishment, either on their face or as applied to the petitioner, we must first determine whether the requirement to register as a sex offender is punishment at all.

I. Eighth Amendment:

Castellanos, infra.

We begin our inquiry under the Eighth Amendment of the United States Constitution, which prohibits cruel and unusual punishment. The United States Supreme Court has clearly established that what constitutes punishment is determined within the context of various constitutional provisions, i.e., the double jeopardy clause of the Fifth Amendment vis-à-vis the excessive fines clause of the Eighth Amendment. (People v. Castellanos (1999) 21 Cal.4th 785, 800-801, 88 Cal.Rptr.2d 346, 982 P.2d 211 (cone. opn. of Kennard, J.), citing United States v. Ursery (1996) 518 U.S. 267, 286-287, 292 [116 S.Ct. 2135, 135 L.Ed.2d 549] and Austin v. United States (1993) 509 U.S. 602 [113 S.Ct. 2801, 125 L.Ed.2d 488].) The appropriate test for the determination of punishment varies, depending on whether the analysis is under the ex post facto clause or the Eighth Amendment. As Justice Kennard points out in Castellanos, supra, 21 Cal.4th at page 801, 88 Cal.Rptr.2d 346, 982 P.2d 211, "[t]he definition of punishment under the Eighth Amendment is a broad one, and encompasses some sanctions whose purpose is both remedial as well as punitive and some that are imposed in civil proceedings. [Citation.]"

People v. Castellanos, supra, 21 Cal.4th 785, 88 Cal.Rptr.2d 346, 982 P.2d 211, a case without a majority opinion, analyzed section 290's registration requirements as punishment, but only within the context of an ex post facto analysis. The lead opinion, written by Chief Justice George and concurred in by Justices Baxter and Chin, concluded that for the purpose of ex post facto analysis only, registration was not punishment. The lead opinion disapproved of In re Reed (1983) 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216, which held that section 290's registration requirements were punishment under article I, section 17 of the California Constitution as applied to a misdemeanor conviction of section 647, subdivision (a), soliciting lewd or dissolute conduct. As noted, supra, this disapproval concerned only an ex post facto analysis.²

Justice Kennard, in a concurring and dissenting opinion joined by Justices Werdegar and Brown, agreed that Reed's conclusion that registration was punishment under the state constitution was incorrect, but only insofar as Reed had applied the test in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144 [83 S.Ct. 554, 9 L.Ed.2d 644] in the context of an ex post facto analysis (we will set forth Mendoza-Martinez later in our discussion). The lead opinion did not incorporate the Mendoza-Martinez test in reaching its conclusions. Justice Kennard's opinion stated: "For the reasons stated above, I disagree with Reed's conclusion that under the Mendoza-Martinez factors sex offender registration is punishment. This does not, however, mean that Reed was incorrect in holding that registration is punishment for purposes of article I, section 17 of the California Constitution. Given the holding in Austin v. United States, supra, 509 U.S. 602, 113 S.Ct. 2801, that for Eighth Amendment purposes the concept of punishment is broader than the Mendoza-Martinez definition, it is possible for a sanction to be punishment under the Eighth Amendment or its state constitutional equivalent in article I, section 17 and yet not be punishment under the Mendoza-Martinez factors. Thus, my analysis does not call Reed's holding into question." (People v. Castellanos, supra, 21 Cal.4th at p. 805, 88 Cal.Rptr.2d 346, 982 P.2d 211.) Justice Mosk dissented, feeling that the Reed decision was still good law.³

In the lead opinion, Chief Justice George pointed out: "In Wright v. Superior Court [(1997)] 15 Cal.4th 521, 63 Cal.Rptr.2d 322, 936 P.2d 101, we recently examined the nature of the sex offender registration requirement imposed by section 290, albeit in another context. We held in Wright that failure to register as required by section 290 is a continuing offense. In so holding, we observed that the sex offender registration requirement `is intended to promote the "`state interest in controlling crime and preventing recidivism in sex offenders.'" [Citation.] As this court consistently has reiterated: "The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]" [Citations.] ... [¶] ... The statute is thus regulatory in nature, intended to accomplish the government's objective by mandating certain affirmative acts.' ... [¶] The sex offender registration requirement serves an important and...