People v. Mosley

• Decision Date: 29 September 2010
• Docket Number: No. G038379.,G038379.
• Citation: 2010 Daily Journal D.A.R. 15, 228,10 Cal. Daily Op. Serv. 12, 642,116 Cal.Rptr.3d 321
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Steven Lloyd MOSLEY, Defendant and Appellant.

116 Cal.Rptr.3d 321 10 Cal. Daily Op. Serv. 12,642 2010 Daily Journal D.A.R. 15,228 The PEOPLE, Plaintiff and Respondent, v. Steven Lloyd MOSLEY, Defendant and Appellant. No. G038379. Court of Appeal, Fourth District, Division 3, California. Sept. 29, 2010.

Background: Defendant charged with committing a lewd act upon a child under 14 was convicted after a jury trial in the Superior Court, Orange County, No. 05NF4105, David A. Hoffer, J., of the lesser included offense of simple assault but was ordered to register as a sex offender. Defendant appealed. The Court of Appeal affirmed as modified. The Supreme Court granted review, superseding the opinion of the Court of Appeal, and transferred the case back to the Court of Appeal.

Holding: The Court of Appeal, Ikola, J., held that defendant had right to jury trial as to facts supporting discretionary sex offender registration.

Affirmed as modified.

Opinion, 86 Cal.Rptr.3d 23, superseded.

West Codenotes

Unconstitutional as Applied

West's Ann.Cal.Penal Code § 3003.5(b).

Prior Version Held Unconstitutional as Applied

West's Ann.Cal.Penal Code § 290.006.

*322 Allison H. Ting, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

IKOLA, J.

We revisit defendant Steven Lloyd Mosley, who a jury acquitted of any sexual offense. The jury found him guilty only of misdemeanor assault. Yet the court ordered defendant to register as a sex offender based upon its own factual findings about his motivations—facts not proved beyond a reasonable doubt to the jury.

In a prior opinion, we held the facts supporting imposition of discretionary sex offender registration must be found beyond a reasonable doubt by a jury. Defendant has the right to a jury trial on any facts (other than a prior conviction) that increase his offense's penalty beyond the statutory maximum. ( Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 ( Apprendi ).) The court's imposition of sex offender registration*323 for misdemeanor assault effectively increased the penalty beyond the statutory maximum because of Jessica's Law, The Sexual Predator Punishment and Control Act, approved in 2006 as Proposition 83. Jessica's Law contains a residency restriction that bars registered sex offenders from residing within 2,000 feet of a school or park where children gather. This residency restriction constitutes punishment due to its overwhelmingly punitive effect.

The California Supreme Court directed that we reconsider the matter in light of In re E.J. (2010) 47 Cal.4th 1258, 104 Cal.Rptr.3d 165, 223 P.3d 31 ( E.J.), which addressed the imposition of the residency restriction as a parole condition. The Supreme Court held the residency restriction applied prospectively to four registered sex offenders paroled after passage of Jessica's Law. When imposed as a new parole condition on a person who already registered as a sex offender, the residency restriction "does not additionally punish for the [underlying] sex offense conviction...." ( Id. at p. 1280, 104 Cal.Rptr.3d 165, 223 P.3d 31.) But the Supreme Court had "no occasion ... to address whether the 2,000-foot residency limit might apply ... to the thousands of persons subject to sex offender registration who, for whatever reason, are not currently on parole." ( Id. at p. 1285, 104 Cal.Rptr.3d 165, 223 P.3d 31 (conc. opn. of Werdegar, J.) citations omitted.) Thus, it did not consider whether the residency restriction constitutes increased punishment for an offense when a trial court imposes discretionary sex offender registration as part of the sentence on that offense.

We leave the substance of the sex offender registration scheme untouched. Courts may impose discretionary sex offender registration; registered sex offenders may be subject to the residency restriction. We hold only that imposing the residency restriction through discretionary sex offender registration as part of the sentencing on the underlying offense increases the penalty for that offense beyond the statutory maximum. Accordingly, the facts supporting the imposition of the registration requirement must be found true by a jury beyond a reasonable doubt. That was not done here, so we modify the judgment by striking the sex offender registration requirement, and affirm.

FACTS

The Incident

L.C. met defendant in June 2003, while she was visiting her grandmother at an Anaheim apartment complex. Defendant was a friend of a boy named B.J., who lived at the apartment complex and whom L.C. had met earlier. L.C.'s grandmother and aunt were sitting down by the pool one night while L.C. hung out with defendant, B.J., and her older brother. L.C. told defendant she was 12 years old. They talked for about 10 minutes, then L.C. went back inside her grandmother's apartment. Later that night, L.C. went to the laundry room. She ran into B.J. and defendant on her way back. Defendant walked up behind her and, when she turned around, he gave her "basically just like a peck" of a kiss. L.C. went back to her grandmother's apartment.

Either the next day or a few days later, L.C. was getting ready to leave her grandmother's apartment and return home to northern California. That afternoon, she was in the apartment building's carport watching her younger cousin ride his scooter. Defendant walked up to her.

Moments later, L.C.'s grandmother went out to check on L.C. She saw defendant reaching out for L.C. and trying to kiss her while she was backing away. His hands touched her somewhere on her upper*324 body. Her grandmother called out to them. Defendant pushed L.C. away and ran off. L.C. went into her grandmother's apartment. The grandmother later told a defense investigator L.C. had asked her, "Please don't tell my mother."

Weeks later, back home in northern California, L.C. told her father defendant had sexually assaulted her. Her father called the local county sheriff's office. A deputy sheriff interviewed L.C. She told him she was standing at the carport when defendant grabbed her arms, pushed her against a pole, leaned against her, and grabbed her buttocks and breasts. They slid off the pole, and defendant forced her backwards against a wall. He pulled down his shorts, "unbuckled" her shorts, and raped her for five minutes. L.C. told the deputy her grandmother and brother came to the carport; she explained the two of them could only see L.C.'s and defendant's heads because they were hidden behind a car. She did not tell the deputy defendant had kissed her before. She did not tell the deputy defendant kissed her on her neck in the carport.

An Orange County Sheriff's Office investigator interviewed L.C. the next week. L.C. told the investigator she had kissed defendant the day before the incident at the carport. She told him defendant walked up to her at the carport and immediately grabbed her, without talking to her first. Defendant pinned her against a pole, then pushed her against a wall. They were partly hidden behind a car. She mumbled when the investigator asked to clarify details about the sexual assault. The investigator spoke to L.C. again in June 2005 and September 2005. In one of these interviews, L.C. claimed defendant grabbed her and kissed her on the stairs to the laundry room the day before the carport incident. In the September 2005 interview, L.C. did not mention defendant pushing her against a pole in the carport. The grandmother told the investigator at a June 2005 interview she saw defendant hugging and kissing L.C.

In October 2005, the Orange County District Attorney charged defendant by information with one count of committing a lewd act upon a child under 14. (Pen.Code, § 288, subd. (a).) ¹ The district attorney later amended the information to include a count of unlawful sexual intercourse (§ 261.5, subd. (c)), but dismissed that count during jury selection.

The Trial

L.C. testified at the January 2007 trial. She stated defendant had kissed her once before the carport incident, a detail she left out from her first police interview. She testified defendant walked up to her at the carport, and they "were just talking about stuff like what he was doing and—for the past couple days." She later testified her two brothers were with her when defendant approached her at the carport, but they left. Defendant started kissing her neck and tried to kiss her on the mouth—he did not grab her initially—but she moved off of the pole against which she had been leaning and backed away from him. Defendant pursued her into a corner. He put his hand down her pants and grabbed her buttocks, rubbed her between her legs, "had both of his hands on [her] wrists where [she] couldn't move," put a hand up her shirt and bra, pulled his shorts down, and unzipped her "skort" (shorts that look like a skirt) and pulled one of its legs to the side. He inserted his penis into her vagina "for about maybe two minutes." Her grandmother walked up and yelled at defendant. L.C. initially testified defendant pulled up his shorts and *325 fled, but later testified he had already pulled up his shorts before her grandmother arrived. Her grandmother asked her, "What were you doing? Why was he standing that close to you?"

L.C.'s grandmother also testified. She stated she went out to the carport to check on L.C. and her little brothers because she had seen the boys running around and wanted to know exactly where they were. She did not remember either boy coming to get her. The grandmother recanted her statement to the police about seeing defendant hugging and kissing L.C. Instead, she testified defendant and L.C. were "struggling," which she clarified as defendant reaching towards L.C. and touching her somewhere on the upper body. The grandmother could...