In re Quoc Thai Pham

• Decision Date: 24 August 2011
• Docket Number: No. B228821.,B228821.
• Citation: 2011 Daily Journal D.A.R. 7005,124 Cal.Rptr.3d 697,195 Cal.App.4th 681,11 Cal. Daily Op. Serv. 5874
• Parties: In re QUOC THAI PHAM On Habeas Corpus. In re Harold P. Brown On Habeas Corpus. In re Arthur Lee Neal, Sr., On Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

195 Cal.App.4th 681

124 Cal.Rptr.3d 697

11 Cal. Daily Op. Serv. 5874

2011 Daily Journal D.A.R. 7005

In re QUOC THAI PHAM On Habeas Corpus.

In re Harold P. Brown On Habeas Corpus.

In re Arthur Lee Neal, Sr., On Habeas Corpus.

No. B228821.

Court of Appeal, Second District, Division 4, California.

May 16, 2011.

Rehearing Denied June 15, 2011.

Review Denied Aug. 24, 2011.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Julie L. Garland, Senior Assistant Attorney General, Julie A. Malone and Charles Chung, Deputy Attorneys General, for Appellant.

Michael P. Judge and Ronald L. Brown, Public Defenders, Dylan Ford, Albert J. Menaster, Mark Harvis, John Hamilton Scott, and Susanne Blossom, Deputy Public Defenders for Respondent Harold P. Brown.

Janice Y. Fukai, Alternate Public Defender, Jean M. Costanza and Cynthia Kairys, Deputy Alternate Public Defenders, for Respondents Quoc Thai Pham and Arthur Lee Neal, Sr.

SUZUKAWA, J.

Appellant Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, appeals from the trial court's November 1, 2010 order staying enforcement of Penal Code section 3003.5, subdivision (b) as to all registered sex offenders on active parole in Los Angeles County pending the resolution of petitions seeking a writ of habeas corpus that had been previously filed. In issuing the order, the court concluded that enforcement of the statute led to the virtual banishment of those parolees from Los Angeles County and thus the statute was unconstitutional. We find the court erred and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

“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; hereinafter Proposition 83 or Jessica's Law)).” (In re E.J. (2010) 47 Cal.4th 1258, 1263, 104 Cal.Rptr.3d 165, 223 P.3d 31.) Proposition 83 revised the Penal Code in certain respects and included an amendment to Penal Code section 3003.5,¹ a statute that restricts where registered sex offenders on parole are allowed to reside. The initiative added section 3003.5, subdivision (b) ( section 3003.5(b)) that 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.” The restriction took effect on November 8, 2006, the effective date of Proposition 83. ( In re E.J., supra, at p. 1263, 104 Cal.Rptr.3d 165, 223 P.3d 31.)

Quoc Thai Pham, Harold P. Brown, and Arthur Lee Neal, Sr. (collectively, petitioners) each filed a petition for a writ of habeas corpus, seeking an order enjoining the enforcement of the residency restriction set forth in section 3003.5(b) as to himself.² The court issued orders directing Cate to show cause why the petitions should not be granted and stayed the enforcement of section 3003.5(b) as to petitioners. On September 28, the court consolidated the three matters.

On October 7, 2010, petitioners filed an application for a temporary stay of enforcement of section 3003.5(b) as to all registered sex offenders on active parole in Los Angeles County. On November 1, the trial court granted petitioners' application. Appellant filed a timely appeal.

On November 16, 2010, appellant filed a petition for a writ of supersedeas. On November 18, we issued a temporary stay of the trial court's November 1 order. Petitioners filed opposition to appellant's petition and a motion to dismiss the appeal. On January 11, 2011, we denied petitioners' motion to dismiss the appeal and appellant's petition for a writ of supersedeas, vacated the stay, and expedited the appeal.

DISCUSSION

I. The November 1 Order Is Appealable

Petitioners renew their argument that the appeal must be dismissed for lack of an appealable order. They contend the November 1 order is an interim stay and there is no statute authorizing an appeal. Appellant responds that section 1507 allows an appeal from a “final order in a habeas corpus matter that grants all or part of the relief sought” and that the superior court order is a preliminary injunction, which is appealable. Petitioners urge the temporary stay is not a final order or a preliminary injunction. We agree with appellant that the order is appealable.

The November 1 order restrains future action by appellant with respect to the enforcement of a specific parole condition pending further hearings. As such, it “partakes of the nature of a preliminary injunction” and is thus appealable. ( Faucette v. Dunbar (1967) 253 Cal.App.2d 338, 340, 61 Cal.Rptr. 97 [allowing appeal by Director of Department of Corrections of order barring the department from imposing as a condition of parole that parolee could not reside at a particular location or violating his parole for doing so pending full hearing on the issue].)

II. Standard of Review

“In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. [Citation.] Appellate review is limited to whether the trial court's decision was an abuse of discretion. [Citation.]” ( Butt v. State of California (1992) 4 Cal.4th 668, 677–678, 15 Cal.Rptr.2d 480, 842 P.2d 1240.) “The party challenging the superior court's order has the burden of making a clear showing of such an abuse. [Citation.] Appellate courts typically state that an abuse of discretion occurs when the lower court exceeds the bounds of reason or contravenes the uncontradicted evidence. [Citation.]” ( Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 739, 106 Cal.Rptr.3d 318.)

“The trial court's determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. [Citation.] Of course, ‘[t]he scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits.’ [Citation.] A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim. [Citation.] Unless potential merit is conceded, an appellate court must therefore address that issue when reviewing an order granting a preliminary injunction.” ( Butt v. State of California, supra, 4 Cal.4th at p. 678, 15 Cal.Rptr.2d 480, 842 P.2d 1240.)

Findings of facts are reviewed for substantial evidence. Where the issue is whether the trial court correctly interpreted and applied statutory or constitutional law, we conduct an independent review. ( People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1136–1137, 60 Cal.Rptr.2d 277, 929 P.2d 596.)

III. The Probability of Petitioners Prevailing on the Merits

Petitioners contended that section 3003.5(b) is unconstitutional as applied in that its enforcement resulted in the banishment of parolees who were required to register pursuant to section 290 from Los Angeles County. In its order, the trial court noted: “The petitioners have alleged numerous facts which, if found true, would demonstrate that there is insufficient housing which is both compliant with the residency restriction in Pen.Code § 3003.5(b) and is also affordable. If, as the petitioners have alleged, compliant, affordable housing is virtually non-existent in Los Angeles County, enforcement of Pen.Code § 3003.5(b) would effectively banish the relevant parolees from residential living within the vast majority of Los Angeles County and force them to make the choice between homelessness and incarceration.”

Relying on People v. Mosley (2010) 188 Cal.App.4th 1090, 116 Cal.Rptr.3d 321, review granted January 26, 2011, S187965, and cases that examined the validity of probationary orders, the court concluded that restrictions on a parolee's right to choose where to live constitutes traditional banishment and banishment “impermissibly ‘impinges on constitutional entitlements—the right to travel and freedom of association.’ ” The trial court found that given the state of the law, “the facts alleged, and the longstanding proscription against banishment as a condition of parole, the petitioners have demonstrated a strong likelihood of success on the merits of the banishment claim.”

Appellant does not challenge the factual underpinnings of the trial court's order—that it is very difficult for certain parolees to find compliant and affordable housing in Los Angeles County. Instead, he argues the court misconstrued the concept of banishment. Appellant contends that “[c]ourts have considered banishment as the expulsion of an individual from a particular community, city, county, state, or country.” He relies on a decision from the Eighth Circuit, Doe v. Miller (8th Cir.2005) 405 F.3d 700, and argues that “a limitation on a registered sex offender's residence does not effectuate banishment.” Appellant cites the following language from Doe: “Unlike banishment, [the Iowa statute] restricts only where offenders may reside. It does not ‘expel’ the offenders from their communities or prohibit them from accessing areas near schools or child care facilities for employment, to conduct commercial transactions, or for any purpose other than establishing a residence.” ( Id. at p. 719.) From this, appellant asserts that unless a parolee is prohibited from traveling to a designated location, a necessary element of banishment is missing. He concludes that as there is nothing in section 3003.5(b) restricting a parolee's ability to visit or travel through any prohibited area, the residency restriction falls “outside the meaning of traditional banishment, [and] the superior court improperly...