Reed, In re

• Citation: 33 Cal.3d 914,191 Cal.Rptr. 658,663 P.2d 216
• Decision Date: 26 May 1983
• Docket Number: Cr. 22595
• Parties: , 663 P.2d 216 In re Allen Eugene REED on Habeas Corpus.
• Court: United States State Supreme Court (California)

Page 658

191 Cal.Rptr. 658

33 Cal.3d 914, 663 P.2d 216

In re Allen Eugene REED on Habeas Corpus.

Cr. 22595.

Supreme Court of California,

In Bank.

May 26, 1983.

Rehearing Denied July 20, 1983.

Jay M. Kohorn, Los Angeles, for petitioner.

Jeff Brown, Public Defender, San Francisco, Peter Keane, Chief Atty., Matthew A. Coles, Robert N. Nakatani, Coles & Nakatani, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, San Francisco, Fred Okrand and Susan McGrievy, Los Angeles, as amici curiae, for petitioner.

John K. Van de Kamp and Robert H. Philibosian, Dist. Attys., Richard W. Hecht, Harry B. Sondheim and Dirk L. Hudson, Deputy Dist. Attys., for respondent.

Ira Reiner, City Atty., Los Angeles, Jack Brown, Deputy City Atty., and John Lovell, Los Angeles, as amici curiae.

MOSK, Justice.

Petitioner was convicted of soliciting "lewd or dissolute conduct" from an undercover vice officer in a public restroom, in violation of Penal Code section 647, subdivision (a). ¹ The court sentenced him to three years formal probation on the condition that he obey all laws and observe the rules established by his probation officer. Pursuant to section 290 petitioner was ordered to register with the Los Angeles Police Department as a sex offender.

Petitioner does not challenge either the constitutionality of section 647(a) or the validity of his own conviction; nor does he argue that no convicted sex offender should ever be required to register under section 290. He instead seeks a writ of habeas corpus, ² contending that the mandatory registration of all section 647(a) misdemeanants constitutes cruel or unusual punishment, and also violates the equal protection clause, infringes on his rights to privacy and intrastate travel, and denies him due process of law. ³

Some background on sections 647(a) and 290 is essential to an understanding of the legal issues presented. Section 647(a) was originally enacted as a vagrancy statute, and a vagrant was defined in the 1955 amended version as "[e]very lewd or dissolute person, or every person who loiters in or about public toilets in public parks." (Stats.1955, ch. 169, § 2, p. 638.) In 1961 the provision was revised to eliminate the concept of a status offense, proscribing instead certain conduct. (Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825, 83 Cal.Rptr. 819, 464 P.2d 483.) Section 647(a) now declares that a person "[w]ho solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view" is guilty of disorderly conduct, a misdemeanor. Holding that the phrase "lewd or dissolute" was impermissibly vague, in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 244, 158 Cal.Rptr. 330, 599 P.2d 636, we construed the statute to prohibit only public solicitation or commission of conduct "which involves the touching of the genitals, buttocks, or female breast, for purposes of sexual arousal, gratification, annoyance or offense, by a person who knows or should know of the presence of persons who may be offended by the conduct." (See also Note, Pryor v. Municipal Court: California's Narrowing Definition of Solicitation for Public Lewd Conduct (1980) 32 Hastings L.J. 461, 474; In re Anders (1979) 25 Cal.3d 414, 416, 158 Cal.Rptr. 661, 599 P.2d 1364.)

Section 290 requires that persons convicted of certain sex-related crimes, including section 647(a) offenses, register with the chief of police of the city in which they temporarily or permanently reside. The registrant must furnish a written statement, fingerprints, and a photograph, which are forwarded to the Department of Justice. Each change of address must be reported within 10 days. Failure to register or re-register is a misdemeanor. The section applies automatically to the enumerated offenses, and imposes on each person convicted a lifelong obligation to register. A misdemeanant may be released from this "penalty or disability" pursuant to section 1203.4, but there is no procedure to expunge the initial registration. (Kelly v. Municipal Court (1958) 160 Cal.App.2d 38, 41, 324 P.2d 990.) The purpose of section 290 is "to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future." (Barrows, supra, 1 Cal.3d at pp. 825-826, 83 Cal.Rptr. 819, 464 P.2d 483; see also Kelly, supra, 160 Cal.App.2d at p. 45, 324 P.2d 990; In re Smith (1972) 7 Cal.3d 362, 367, 102 Cal.Rptr. 335, 497 P.2d 807.)

The registration requirement applies to some but not all of the sex-related offenses enumerated in the Penal Code. In addition to section 647(a), those which trigger section 290 include: section 647, subdivision (d) (loitering in or about public toilets); section 266 (procuring female under age 18 for prostitution); section 272 (contributing to the delinquency of a minor); section 288 (lewd or lascivious conduct with child under age 14); section 288a (oral copulation); section 314, subdivision 1 (indecent exposure); section 285 (incest); section 286 (sodomy); section 220 (assault with intent to commit rape, sodomy, oral copulation, etc.); and section 261, subdivision (2) (forcible rape). The only other crimes for which police registration is required are certain narcotics offenses. (Health & Saf.Code, § 11590 et seq.)

On the other hand, sex-related crimes for which registration is not required include: section 311.4 (child pornography); section 261.5 (statutory rape); section 281 (bigamy); section 286.5 (bestiality); section 273g (lewdness in the presence of a child); section 647, subdivision (h) ("Peeping Tom"); sections 266d through 266i (pimping and pandering); and section 647, subdivision (b) (soliciting or engaging in acts of prostitution).

Petitioner contends that mandatory sex offender registration for section 647(a) misdemeanants violates the constitutional prohibition against cruel or unusual punishment. (Cal. Const., art. I, § 17.) Our first inquiry is whether such registration is a form of punishment within the meaning of the constitutional provision. ⁴

In Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, the United States Supreme Court enumerated the following factors for consideration on this issue: "Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment--retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions." (Fns. omitted; id. at pp. 168-169, 83 S.Ct. at 567-568.) We find that by this standard sex offender registration is punitive.

First, we are convinced that such registration is an "affirmative disability or restraint." In Kelly v. Municipal Court, supra, 160 Cal.App.2d at page 41, 324 P.2d 990, the court described the requirement as one of the "penalties and disabilities" imposed on certain convicted misdemeanants. In In re Birch (1973) 10 Cal.3d 314, 110 Cal.Rptr. 212, 515 P.2d 12, we vacated a conviction under section 647(a) and ordered that a guilty plea be set aside on the grounds that the record did not indicate petitioner had been advised of his right to counsel and had not been informed that, as a result of his conviction, he would be required to register as a sex offender under section 290. Justice Tobriner, writing for a unanimous court, concluded that "[a]lthough the stigma of a short jail sentence should eventually fade, the ignominious badge carried by the convicted sex offender can remain for a lifetime." (Id. at pp. 321-322; italics added.) Similarly, albeit in a different context, Justice Kaus has characterized the sex offender registration requirement as follows: "Apart from the bother and loss of privacy which mere registration entails, the 'ready availability' to the police, if it serves its purpose, presumably means a series of command performances at lineups." (Kaus & Mallen, The Misguiding Hand of Counsel--Reflections on "Criminal Malpractice" (1974) 21 UCLA L.Rev. 1191, 1222.) ⁵ Needless to emphasize, law enforcement "command performances" involve compulsion and restraint.

Although the obligation to register may be terminated pursuant to section 1203.4, there is no provision for expunging the initial registration. Thus, for example, a person who lives in Los Angeles but is convicted under section 647(a) in San Diego must register under section 290 in Los Angeles. After the probationary period has expired, he may petition in San Diego for release from the registration penalty under section 1203.4. If successful, he will not be required to re-register if he moves; however, he will always remain registered as a sex offender in Los Angeles. His name, photograph, fingerprints, and other relevant information will be permanently available to the Los Angeles police. Thus section 290 effectively imposes a lifelong burden on all those subjected to its terms. ⁶

The fact that sex offender registration may not have "historically been regarded as punishment" is not dispositive. The Mendoza-Martinez opinion sets out a number of relevant considerations, not a checklist of absolute requirements. Furthermore, in Trop v. Dulles (1958) 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630, the Supreme Court invalidated the penalty of denationalization imposed for wartime desertion. The court denied that the government has "a license ... to devise any punishment short of death within the limits of its imagination.... [p] ... Fines, imprisonment, and even execution may be imposed...