In re Alva, No. S098928.

• Court: California Supreme Court
• Writing for the Court: BAXTER, J.
• Citation: 92 P.3d 311,14 Cal.Rptr.3d 811,33 Cal.4th 254
• Docket Number: No. S098928.
• Decision Date: 28 June 2004
• Parties: In re Leon Casey ALVA on Habeas Corpus.

14 Cal.Rptr.3d 811
92 P.3d 311
33 Cal.4th 254

In re Leon Casey ALVA on Habeas Corpus

No. S098928.

Supreme Court of California.

June 28, 2004.

14 Cal.Rptr.3d 812

Steven T. Flowers, Beverly Hills, for Petitioner Leon Casey Alva

James K. Hahn and Rockard J. Delgadillo, City Attorneys, Debbie Lew, Assistant City Attorney, and Candice I. Horikawa, Deputy City Attorney, for Respondent the People.

BAXTER, J.

In In re Reed (1983) 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216 (Reed), this court held that California's law requiring lifelong registration as a convicted sex offender (see Pen.Code, § 290 et seq.)¹ violated the "cruel or unusual punishment" clause of the California Constitution (art. I, § 17) as applied to one convicted of the misdemeanor of engaging in, or soliciting, lewd or dissolute conduct in a public place (§ 647, subd. (a) (§ 647(a)). Here, petitioner Alva was convicted of another sex-related misdemeanor, possession of child pornography as a first offense. (§ 311.11, subd. (a).) He urges that mandatory lifetime sex offender registration for this crime similarly constitutes cruel and/or unusual punishment under both the state and federal Constitutions. We disagree. Indeed, developments since Reed persuade us that Reed itself was incorrectly decided and must be overruled.

A necessary predicate to Reed's holding was its conclusion that sex registration constitutes "punishment" within the meaning of California's cruel or unusual punishment

14 Cal.Rptr.3d 813

clause. The Reed majority conceded that "the Legislature may reasonably have intended ... sex offender registration [to] serve as a law enforcement tool to facilitate criminal investigations." (Reed, supra, 33 Cal.3d 914, 922, 191 Cal.Rptr. 658, 663 P.2d 216.) Nonetheless, after purporting to apply the multifactor test set forth in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (Mendoza-Martinez), the Reed majority determined that sex registration was punitive

More recently, however, this court held in People v. Castellanos (1999) 21 Cal.4th 785, 88 Cal.Rptr.2d 346, 982 P.2d 211 (Castellanos) that sex offender registration is regulatory in both purpose and effect, and is thus not "punishment" for purposes of the state and federal ex post facto clauses (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9). Both the lead and concurring opinions in Castellanos concluded that Reed's application of the Mendoza-Martinez test was not persuasive for ex post facto purposes.

Nonetheless, Castellanos reserved the question whether Reed remained good law in the context of cruel and/or unusual punishment. Our concern on this account stemmed solely from a single high court decision, Austin v. United States (1993) 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (Austin). Austin suggested, in a context far removed from sex offender registration laws, that a measure might impose "punishment" for purposes of the Eighth Amendment's ban on cruel and unusual punishment even if it was not punitive for other constitutional purposes under the Mendoza-Martinez test.

More recently still, the United States Supreme Court, placing extensive reliance on the Mendoza-Martinez test, has confirmed that Alaska's sex offender registration act—and in particular, the statute's provision for notification to the public about the registrant's identity, crime, and whereabouts—is a regulatory law, not a punitive measure, for purposes of the federal ex post facto clause. (Smith v. Doe (2003) 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (Smith).)

When Reed was decided, only five states, including California, "require[d] any kind of sex offender registration." (Reed, supra, 33 Cal.3d 914, 925, 191 Cal.Rptr. 658, 663 P.2d 216.) Since that time, virtually every one of the United States has enacted such a law. Many were prompted by congressional legislation, adopted in the 1990s, which conditions certain federal grants-in-aid on a state's enactment of conforming sex offender registration laws. Almost without exception, the state and federal courts considering these state laws have found—both before and since Austin—that they are legitimate regulatory measures, designed to assist law enforcement and to protect the public, and are not punitive for purposes of constitutional proscriptions against cruel and/or unusual punishment.

We now do the same. Even if Austin, supra, 509 U.S. 602, 113 S.Ct. 2801, establishes a stricter test of "punishment" for Eighth Amendment purposes than might apply under other provisions of the Constitution, we conclude that California's law requiring the mere registration of convicted sex offenders is not a punitive measure subject to either state or federal proscriptions against punishment that is "cruel" and/or "unusual."

In the case before us, the Court of Appeal affirmed the registration requirement against Alva. Under compulsion of Reed, supra, 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216, the Court of Appeal assumed that a sex offender registration requirement is punishment for purposes of our state's prohibition of cruel or unusual punishment.

14 Cal.Rptr.3d 814

However, the court found that requiring Alva to register as a sex offender is neither "cruel" nor "unusual" as applied to the facts surrounding his offense. Because we now conclude, contrary to Reed, that the registration requirement is not punishment at all for this purpose, we will affirm the judgment of the Court of Appeal

FACTS AND PROCEDURAL BACKGROUND

After a 1999 municipal court trial, Alva was convicted of a misdemeanor count of possession of child pornography, a violation of section 311.11, subdivision (a). This statute makes it a public offense for any person, among other things, to possess or control any visual matter, "the production of which involve[d] the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct."² In other words, the prohibited matter must depict actual persons, who are actually under 18, engaged in actual or simulated sex acts, and the violator must know that this is so. Only the first violation of section 311.11, subdivision (a) is a misdemeanor; subsequent violations are felonies. (§ 311.11, subd. (b).)

At a sentencing hearing on July 13, 1999, the court placed Alva on 36 months' summary probation, with the conditions, among others, that he serve 60 days in jail (stayed pending completion of probation), pay fines totaling $1,550, and complete sexual deviancy therapy. As required by section 290, subdivision (a)(2)(A), the court also imposed a lifetime obligation that Alva register as a sex offender under subdivision (a)(1) of section 290.

Alva's appeal argued, among other things, that the sex offender registration requirement was cruel and/or unusual punishment as applied to the facts of his case. The appellate division of the superior court affirmed the judgment. Alva's motion for rehearing, or in the alternative for certification to the Court of Appeal (see Cal. Rules of Court, former rule 63), was denied, and the appellate division issued its remittitur.

Thereafter, Alva filed an original petition for writ of habeas corpus in the Court of Appeal, re-raising all the issues rejected in his appeal. The petition was summarily denied. We granted review and retransferred the matter to the Court of Appeal, Second Appellate District, Division Three, with instructions to order the Los Angeles County Probation Department to show cause before the Court of Appeal "why the requirement that [Alva] register as a sex offender is not cruel and/or unusual punishment under the United States and California Constitutions. (See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; Pen.Code, §§ 311.11, 290[,] [subdivision] (a)(2)(A); People v. Castellanos (1999) 21 Cal.4th 785 [88 Cal.Rptr.2d 346, 982 P.2d 211]; In re Reed (1983) 33 Cal.3d 914 [191 Cal.Rptr. 658, 663 P.2d 216].)"

14 Cal.Rptr.3d 815

The Court of Appeal denied habeas corpus relief and discharged the order to show cause. First, the Court of Appeal agreed with the vast majority of non-California decisions that sex offender registration is not "punishment" for purposes of the Eighth Amendment's proscription of "cruel and unusual punishments." Second, though it questioned the continued viability of Reed, supra, 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216 in light of Castellanos, supra, 21 Cal.4th 785, 88 Cal.Rptr.2d 346, 982 P.2d 211, the court concluded Castellanos had not overruled Reed's determination that sex offender registration is "punishment" for purposes of the California Constitution's ban on "cruel or unusual punishment." (Cal. Const., art. I, § 17.) Third, in an extensive analysis, the court determined that sex offender registration, even if "punishment," is not "cruel or unusual" as applied either to the statutory offense of possession of child pornography or to the particular facts of Alva's case.

Both parties sought review. Alva urged that there was no evidence he is an actual threat to children, and that the "punishment" of sex offender registration is cruel and/or unusual in his case. Respondent argued that sex offender registration is not "punishment" at all within the scope of constitutional protections against punishments that are "cruel" and/or "unusual."³ Noting such intervening developments as our decision in Castellanos, supra, 21 Cal.4th 785, 88 Cal.Rptr.2d 346, 982 P.2d 211, respondent urged that we reexamine Reed, supra, 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216, in this context.

We granted respondent's petition, but denied Alva's. We now agree with the Court of Appeal that for purposes of the Eighth Amendment, sex offender registration is a legitimate regulatory measure, not punishment, and thus falls outside the scope of the United States Constitution's ban on cruel and unusual punishments. For similar reasons, and after careful...