People v. Mosley, No. S187965.

CourtUnited States State Supreme Court (California)
Writing for the CourtBAXTER, J.
Decision Date02 March 2015
PartiesThe PEOPLE, Plaintiff and Respondent, v. Steven Lloyd MOSLEY, Defendant and Appellant.
Docket NumberNo. S187965.

60 Cal.4th 1044
344 P.3d 788
185 Cal.Rptr.3d 251

The PEOPLE, Plaintiff and Respondent
Steven Lloyd MOSLEY, Defendant and Appellant.

No. S187965.

Supreme Court of California

March 2, 2015.

185 Cal.Rptr.3d 252

Allison H. Ting, Santa Monica, and George L. Schraer, San Diego, under appointments by the Supreme Court, for Defendant and Appellant.

Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Santa Barbara, for California Public Defenders Association as Amicus Curiae on behalf of Defendant and Appellant.

Richard Such for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant.

Christina Allbright, Eureka, for California Coalition on Sexual Offending and The Association for the Treatment of Sexual Abusers as Amici Curiae on behalf of Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Michael P. Farrell, Assistant Attorneys General, Donald E. de Nichola, Deputy State Solicitor General,

185 Cal.Rptr.3d 253

Peter Quon, Jr., Lilia E. Garcia, Angela M. Borzachillo, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.



344 P.3d 789
60 Cal.4th 1048

We confront a single, narrow issue. Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi ) held that the Sixth Amendment generally requires a jury to find “any fact that increases the penalty for a crime beyond the prescribed statutory maximum.” (Id., at p. 490, 120 S.Ct. 2348, italics added.) If a judge makes the findings underlying his or her discretionary order that a convicted criminal defendant must register as a sex offender, is the order invalid under Apprendi insofar as it includes registered sex offender residency

344 P.3d 790

restrictions imposed by 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)? We conclude the answer is no.

California law has long required persons convicted of certain specified sex crimes, including commission of a lewd act on a child under 14 (Pen.Code, § 288, subd. (a) (section 288(a) ))1 to register as sex offenders as long as they live or work in California. (§ 290, subds. (b), (c).) If the conviction is for an offense other than those automatically requiring registration, the court may nonetheless exercise its discretion to impose a registration requirement if the court finds the offense was sexually motivated or compelled, and that registration is justified by the defendant's risk of reoffense. (§ 290.006 ; see People v. Garcia (2008) 161 Cal.App.4th 475, 485, 74 Cal.Rptr.3d 681 ; cf., People v. Hofsheier (2006) 37 Cal.4th 1185, 1196–1197, 39 Cal.Rptr.3d 821, 129 P.3d 29 (Hofsheier ), overruled on other grounds, Johnson v. Cal. Dept. of Justice (2015) 60 Cal.4th 871, 183 Cal.Rptr.3d 96, 341 P.3d 1075.)

On November 7, 2006, the voters enacted Proposition 83. Among other things, the initiative measure sought to create “predator free zones around schools and parks to prevent sex offenders from living near where our children learn and play.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) (Ballot Pamphlet) argument in favor of Prop. 83, p. 46, italics and capitalization omitted.) To this end, Proposition 83 added new subdivision (b) to an existing statute, Penal Code section 3003.5.

Prior to Proposition 83, section 3003.5, codified among laws dealing with parole, had limited the rights of parolee sex offender registrants, while on parole, to live with other registered sex offenders. (Id., subd. (a).) As added by the initiative measure, subdivision (b) of section 3003.5 (hereafter section 3003.5(b) ) declares: “Notwithstanding any other provision of law, it is

60 Cal.4th 1049

unlawful for any person for whom registration [as a sex offender] is required ... to reside within 2000 feet of any public or private school, or park where children regularly gather.” (Italics added.)

Here, defendant's 2003 conduct with a 12–year–old girl led to a charge he committed a lewd act on a child under 14. In a 2007 trial, the jury acquitted him of that crime, but convicted him of the lesser misdemeanor offense of simple assault. At sentencing, the court exercised its discretion to order him to register as a sex offender. To support this action, the court found, as specified in section 290.006, that

185 Cal.Rptr.3d 254

the assault was committed “as a result of sexual compulsion or for purposes of sexual gratification.” The court further determined that defendant was physically dangerous to the public, at serious risk to reoffend, and not being treated for his sexual compulsion.

The Court of Appeal accepted defendant's argument that the registration order is invalid under Apprendi because the trial judge, and not a jury, made the predicate factual findings. The appellate court was persuaded by well-settled authority that a requirement to register as a sex offender is not, in and of itself, a criminal penalty, or punishment, for the conviction that led to imposition of the requirement. But the court concluded that the residency restrictions of Jessica's Law are punitive, that the initiative measure made these restrictions an integral part of every registration order, including defendant's, and that the lack of jury findings to support the instant order thus violated Apprendi.

On review, the People urge at the outset that even if the residency restrictions of Jessica's Law are punitive, they do not invalidate defendant's registration order because they simply do not apply to this order. The People posit that as a matter of statutory intent, section 3003.5(b)'s residency restrictions apply only to parolees while they are on parole, and have no effect on a nonparolee misdemeanant such as defendant.

We need not, and do not, decide this threshold issue of statutory construction in order to resolve the narrow Apprendi issue before us. Even if we assume, as defendant insists, that section 3003.5(b) does apply to

344 P.3d 791

him, we are persuaded, for three separate and independently dispositive reasons, that Apprendi does not invalidate his registration order.

First, as the People also argue, the effect of Apprendi on the residency restrictions of Jessica's Law is obviated by a post-Apprendi decision, Oregon v. Ice (2009) 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (Ice ). In Ice, the high court concluded that the Sixth Amendment's protections must be viewed in light of the jury trial right as it existed at the time the Constitution was adopted, and cannot intrude unduly on the sovereign states' historical

60 Cal.4th 1050

dominion over the subsequent development of their penal systems. Hence, the Ice court determined, Apprendi has no application to sentencing decisions in which juries played no factfinding role at common law. Sentencing choices such as sex offender residency restrictions are devices, developed by the sovereign states in more modern times, that were not historically entrusted to juries. A requirement that juries must always authorize them would often interfere with their intended and effective implementation. Thus, we need not inquire further into whether they are or are not punitive in order to conclude they are not limited by Apprendi.

Second, we disagree in any event that the residency restrictions constitute a penalty for purposes of Apprendi. Under tests traditionally employed to determine what constitutes punishment for constitutional purposes, the residency restrictions, like sex offender registration itself, cannot facially be considered anything other than a legitimate, nonpunitive regulatory device. Their manifest intent is not to exact retribution, or to deter by threat of sanction, but to promote public safety by physically insulating vulnerable children from potentially recidivist registered sex offenders who might prey upon them. The restrictions may impose significant life difficulties in particular situations or communities,2

185 Cal.Rptr.3d 255

but they do not so resemble historical forms of punishment, and are not, on their face, so onerous, disabling, irrational, or overbroad as to require a conclusion that their punitive effect overrides their regulatory purpose.

Third, even if the residency restrictions of Jessica's Law did require jury findings under Apprendi, this would not mean a registration order unsupported by such findings must be struck. No reason appears why the nonpunitive registration order itself should not survive in such a case, even if the attendant residency restrictions were unenforceable.


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