In re E.J.
| Decision Date | 01 February 2010 |
| Docket Number | No. S157634.,No. S156933.,No. S157633.,No. S157631.,S156933.,S157631.,S157633.,S157634. |
| Citation | 104 Cal. Rptr. 3d 165,223 P.3d 31,47 Cal.4th 1258 |
| Court | California Supreme Court |
| Parties | In re E.J. on Habeas Corpus. In re S.P. on Habeas Corpus. In re J.S. on Habeas Corpus. In re K.T. on Habeas Corpus. |
Alan L. Schlosser and Michael T. Risher for American Civil Liberties Union of Northern California as Amicus Curiae on behalf of Petitioners.
Gary Steven Bowman, in pro. per., as Amicus Curiae on behalf of Petitioners.
Robert Jacob Goldenflame, in pro. per., as Amicus Curiae on behalf of Petitioners.
Mennemeier, Glassman & Stroud, Kenneth C. Mennemeier and Kelcie M. Gosling for Respondent Secretary of the California Department of Corrections and Rehabilitation.
On November 7, 2006, the voters enacted Proposition 83, The Sexual Predator Punishment and Control Act: Jessica's Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006); hereafter Proposition 83 or Jessica's Law). Proposition 83 was a wide-ranging initiative intended to "help Californians better protect themselves, their children, and their communities" (id., § 2, subd. (f)) from problems posed by sex offenders by "strengthen[ing] and improv[ing] the laws that punish and control sexual offenders" (id., § 31).
Among other revisions to the Penal Code,1 Proposition 83 amended section 3003.5, a statute setting forth restrictions on where certain sex offenders subject to the lifetime registration requirement of section 2902 may reside. New subdivision (b), added to section 3003.5, provides: "Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather." (§ 3003.5, subd. (b) (section 3003.5(b)).) The new residency restrictions took effect on November 8, 2006, the effective date of Proposition 83.
Subsequent to Proposition 83's enactment, the California Department of Corrections and Rehabilitation (CDCR) sought to enforce section 3003.5(b) as a statutory parole condition by serving notice on registered sex offenders released on parole after November 8, 2006, including these petitioners requiring them to comply with the mandatory residency restrictions or face revocation of parole and reincarceration.
The unified petition for writ of habeas corpus here before us was filed by four registered sex offender parolees subject to the new mandatory residency restrictions. In each case, the petitioner was convicted of a sex offense or offenses, for which lifetime registration was required pursuant to section 290, well before the passage of Proposition 83. In each case, the petitioner was released from custody on his current parole after November 8, 2006, the effective date of the new law.
At the threshold, petitioners contend that enforcement of section 3003.5(b)'s residency restrictions as to them constitutes an impermissible retroactive application of the statute, in contravention of the general statutory presumption that Penal Code provisions operate prospectively (§ 3), because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83. In a closely related argument, petitioners contend that such retroactive enforcement of section 3003.5(b) further violates the ex post facto clauses of the United States and California Constitutions insofar as it "`makes more burdensome the punishment for a crime, after its commission.'" (Collins v. Youngblood (1990) 497 U.S. 37, 42 [111 L.Ed.2d 30, 110 S.Ct. 2715].) Petitioners also contend section 3003.5(b) is an unreasonable, vague, and overbroad parole condition that infringes on various federal and state constitutional rights, including their privacy rights, property rights, right to intrastate travel, and substantive due process rights under the federal Constitution.
We issued orders to show cause with respect to each petitioner's claims, making them returnable before this court. We stayed enforcement of section 3003.5(b) as to these four named petitioners and consolidated their actions for purposes of briefing and oral argument in this court.
We have determined that petitioners' retroactivity and ex post facto claims, common to all four petitioners, can be addressed on the record currently before us. We conclude they lack merit and must be denied.
(1) Petitioners' remaining claims—that section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on a number of their fundamental constitutional rights—present considerably more complex "as applied" challenges to the enforcement of the new residency restrictions in the respective jurisdictions to which each petitioner has been paroled. Petitioners are not all similarly situated with regard to their paroles. They have been paroled to different cities and counties within the state, and the extent of housing in compliance with section 3003.5(b) available to them during their terms of parole—a matter critical to deciding the merits of their "as applied" constitutional challenges—is not factually established on the declarations and materials appended to their petition and traverse. With regard to petitioners' remaining constitutional claims, evidentiary hearings will therefore have to be conducted to establish the relevant facts necessary to decide each claim.
The trial courts of the counties to which petitioners have been paroled are in the best position to conduct such hearings and find the relevant facts necessary to decide the remaining claims in their respective jurisdictions. These would include, but are not necessarily limited to, establishing each petitioner's current parole status; the precise location of each petitioner's current residence and its proximity to the nearest "public or private school, or park where children regularly gather" (§ 3003.5(b)); a factual assessment of the compliant housing available to petitioners and similarly situated registered sex offenders in the respective counties and communities to which they have been paroled; an assessment of the way in which the mandatory parole residency restrictions are currently being enforced in those particular jurisdictions; and a complete record of the protocol CDCR is currently following to enforce section 3003.5(b) in those jurisdictions consistent with its statutory obligation to "assist parolees in the transition between imprisonment and discharge." (§§ 3000, subd. (a)(1), 3074.)
Accordingly, the petition for writ of habeas corpus and orders to show cause previously issued with regard to each petitioner's remaining claims shall be ordered transferred to the appropriate Courts of Appeal with directions that each matter be transferred to the trial court in the county to which the petitioner has been paroled, for further proceedings consistent with the views expressed herein.
Proposition 83 was submitted to the voters on the November 7, 2006 ballot. The purpose of the initiative was described in section 2, which explains that "[s]ex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon," that they "prey on the most innocent members of our society," and that "[m]ore than two-thirds of the victims of rape and sexual assault are under the age of 18." (Prop. 83, § 2 subd. (b).) Section 2 further declares 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)), and that "California 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).) Section 2 also states, "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." (Id., subd. (f).)
As explained in the official ballot pamphlet, Proposition 83 sought to achieve its proponents' goal of creating "predator free zones around schools and parks to prevent sex offenders from living near where our children learn and play" through the enactment of mandatory residency restrictions in the form of an amendment to section 3003.5, a statute setting forth restrictions on where certain sex offenders subject to the lifetime registration requirement of section 290 may reside. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) argument in favor of Prop. 83, p. 46, capitalization & italics omitted (Voter Information Guide).) As noted, the initiative added new subdivision (b) to section 3003.5, making it "unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather." (§ 3003.5(b), added by Prop. 83, § 21.)
On August 17, 2007, the Division of Adult Parole Operations (DAPO) of CDCR issued Policy No. 07-36, pertaining to the enforcement of section 3003.5(b) upon parolees. (CDCR, Policy No. 07-36: Implementation of Proposition 83, aka Jessica's Law (Aug. 17, 2007) (Policy No. 07-36).) Under that policy, section 2616 of title 15 of the California Code of Regulations, setting forth grounds...
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