People v. Fioretti

• Decision Date: 10 April 1997
• Docket Number: No. H015792,H015792
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 3445, 97 Daily Journal D.A.R. 5897 The PEOPLE, Plaintiff and Respondent, v. Joseph Lawrence FIORETTI, Defendant and Appellant.

Page 367

63 Cal.Rptr.2d 367

54 Cal.App.4th 1209, 97 Cal. Daily Op. Serv. 3445,

97 Daily Journal D.A.R. 5897

The PEOPLE, Plaintiff and Respondent, v. Joseph Lawrence FIORETTI, Defendant and Appellant.

No. H015792.

Court of Appeal, Sixth District, California.

April 10, 1997.

Review Denied July 16, 1997.

[54 Cal.App.4th 1211] Thomas Knutsen, Newark, for Defendant and Appellant.

George W. Kennedy, District Attorney, Santa Clara County, Evelyn A. Peyton, Deputy District Attorney, Michael L. Rossi, Deputy District Attorney, for Plaintiff and Respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

Appellant Joseph Lawrence Fioretti was convicted of violating Penal Code section 290, subdivision (f), ¹ which requires that sex offenders subject to the registration requirements of section 290 inform authorities of any change of residence. In defense he maintained he was not required to re-registered under section 290, subdivision (f), because he had been relieved of all registration requirements in 1983, when his probation was discharged and his record was cleared by court order pursuant to section 1203.4. At the time appellant obtained his section 1203.4 clearance, however, section 290.1, enacted effective January of 1982, was the law. (Stats.1981, ch. 105, p. 794, § 1.) That section provides that registration requirements continue notwithstanding a section 1203.4 record clearance.

Appellant argues here that section 290.1 cannot be applied to him without violating constitutional ex post facto protections because it was enacted after he had committed his original offense in 1980 and it retroactively increased the punishment for that offense. We reject appellant's ex post facto claim and affirm his conviction for violating section 290, subdivision (f).

BACKGROUND

Appellant was convicted of a violation of section 288, subdivision (a), on December 30, 1980, relating to an offense committed on August 16, 1980. On April 10, 1981, he was sentenced to three years formal probation, subject to various conditions, including the requirement that he register under section 290 as a sex offender. He registered on December 8, 1981. At all of these times the law provided that a probationer who fulfilled the conditions of probation or received an early discharge from probation could have his conviction expunged from the record and "be released from all penalties and disabilities resulting from the offense...." (§ 1203.4.)

Effective January 1, 1982, section 290.1 was added to the Penal Code and expressly provided that an expungement under section 1203.4 does not relieve a felony sex offender from the continuing duty to register under the provisions of section 290. (Stats.1981, ch. 105, p. 794, § 1.)

On April 8, 1983, the superior court terminated appellant's probation after 24 months (§ 1203.3) and granted him a record clearance pursuant to section 1203.4. The order made no reference to registration requirements, simply providing that appellant was granted a "record clearance pursuant to section 1203.4 P.C."

In 1990 the San Jose Police Department became aware of facts suggesting that appellant had relocated his residence and had not informed law enforcement agencies of this change pursuant to section 290, subdivision (f).

On May 13, 1994, a complaint was filed in the Municipal Court of Santa Clara County, alleging that between May 6, 1993, and May 6, 1994, appellant violated the requirements of section 290 by failing to register after changing his residence. Appellant entered a plea of not guilty and moved to dismiss the complaint on grounds that he had been relieved from registration requirements by the 1983 clearance of his record under section 1203.4.

The municipal court denied the motion to dismiss on April 28, 1995, and the superior court denied appellant's writ petition. On September 29, 1995, this court also denied writ relief, for the reason that ordinary appellate remedies were adequate.

Thereafter, appellant withdrew his not guilty plea and entered a plea of nolo contendere to the charge of violating section 290. He appealed the ensuing judgment, as well as the order denying his motion to dismiss, to the appellate department of the superior court. The appellate panel affirmed the judgment on July 17, 1996, and subsequently certified the case for transfer to this court. We accepted transfer September 6, 1996.

ARGUMENT

A law which makes more burdensome the punishment for a crime after its commission violates ex post facto provisions of the United States and California Constitutions. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288, 279 Cal.Rptr. 592, 807 P.2d 434; People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955; Collins v. Youngblood (1990) 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30; U.S. Const., art. I, § 9, cl. 3; Cal. Const., art. I, § 9.) Simply stated, the rule is that "[l]egislatures may not retroactively ... increase the punishment for criminal acts." (Collins v. Youngblood, supra, at p. 43, 110 S.Ct. at 2719.)

Here, at the time section 290.1 was enacted, appellant was serving his term of probation and was subject to all registration requirements, including the requirement under subdivision (f) to inform authorities of a change of residence. Although he was entitled to petition the court to obtain a record clearance if he successfully completed probation, he had not yet done so. At the time he initiated the proceeding to have his record cleared, section 290.1 was the law, and had been the law for over a year. It provided that "[n]otwithstanding Section 1203.4 ... a person convicted of a felony sex offense shall not be relieved from the duty to register under Section 290." Thus in 1983, when appellant petitioned the court under section 1203.4, the court was without power under prevailing law to relieve him from the continuing registration requirements of section 290.

Section 290.1 did not impose any additional requirements on appellant, since he was at all times subject to the provisions of section 290. He argues that section 290.1 deprived him of the opportunity to be relieved entirely of the requirements of section 290 and that this constituted increased punishment for purposes of the ex post facto clause. We disagree. In Collins v. Youngblood, supra, the Supreme Court clarified the punitive aspect of the ex post facto analysis. Prior to Collins, a line of cases had included a "disadvantage" to a defendant as a component of the ex post facto analysis. (See, e.g., Weaver v. Graham (1981) 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-65, 67 L.Ed.2d 17; Kring v. Missouri (1883) 107 U.S. 221, 228-229, 2 S.Ct. 443, 449-50, 27 L.Ed. 506; Thompson v. Utah (1898) 170 U.S. 343, 352-353, 18 S.Ct. 620, 623-24, 42 L.Ed. 1061.) Collins refocussed the analysis on defendant's punishment. "Under Collins, ... the ex post facto clause prohibits not just a burden but a more burdensome punishment." (People v. McVickers, supra, 4 Cal.4th at p. 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.) The proper inquiry post-Collins is not whether the law results in a disadvantage to the person affected by it but rather whether it increases the penalty by which a crime is punished. (Ibid.)

Appellant argues that the disadvantage to him resulting from the enactment of section 290.1 was similar to the effect of laws changing a defendant's eligibility to receive a lesser sentence (Lindsey v. Washington (1937) 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182) or changing sentencing guidelines (Miller v. Florida (1987) 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351). Again, we disagree. Appellant's sentence was not affected here. Moreover, pre-Collins cases based on a "disadvantage" to defendant are out of step with accepted ex post facto analysis.

Under current standards, where a statute has primarily a legitimate regulatory purpose, it is not considered punitive, even though it may also have a punitive purpose and even if it disadvantages the person affected by it. (Pro-Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1684, 54 Cal.Rptr.2d 600; U.S. v. Ursery (1996) --- U.S. ----, ---- - ----, 116 S.Ct. 2135, 2145-2146, 135 L.Ed.2d 549; De Veau v. Braisted (1960) 363 U.S. 144, 160, 80 S.Ct. 1146, 1154-55, 4 L.Ed.2d 1109; Doe v. Poritz (1995) 142 N.J. 1, 662 A.2d 367; State v. Carpenter (1995) 197 Wis.2d 252, 541 N.W.2d 105, 113.) Here, the purpose of section 290.1, as with registration requirements in general, was to provide local police authorities with information about the whereabouts of convicted sex offenders, thereby facilitating the investigation of sex crimes. (Assem. Com. on Criminal Justice, Analysis of Assem. Bill No. 322 (1981-1982 Reg.Sess.)) Protecting the public and providing for the safety of its citizens is a legitimate non-punitive purpose. (State v. Carpenter, supra, 541 N.W.2d at p. 112.) Under current ex post facto analysis, section 290.1 is not so punitive in purpose or effect as to override its regulatory purpose. (U.S. v. Ursery, supra, --- U.S. at pp. ---- - ----, 116 S.Ct. at pp. 2145-2146.) Indeed virtually every court recently considering sex offender registration laws has held that these requirements are regulatory rather than punitive. (See, e.g., Kitze v. Commonwealth (1996) 23 Va.App. 213, 475 S.E.2d 830; Opinion of Justices to the Senate (Mass.1996) 423 Mass. 1201, 668 N.E.2d 738; State v. Myers (1996) 260 Kan. 669, 923 P.2d 1024; Artway v. Attorney General of State of N.J. (3rd Cir.N.J.1996) 81 F.3d 1235, 1267; State of Arizona v. Noble (1992) 171 Ariz. 171, 829 P.2d 1217, 1219-1220; Washington v. Ward (1994) 123 Wash.2d 488, 869 P.2d 1062.) While no California court has directly addressed the issue, the Supreme Court in People v. McVickers, supra, cited with approval the case of State of Arizona v. Noble: "State v. Noble ... held that a statute requiring registration of sex offenders did not violate the ban on ex post facto legislation as applied to a defendant whose crimes preceded its e...