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In re E.J.

February 1, 2010

IN RE E.J. ON HABEAS CORPUS.
IN RE S.P. ON HABEAS CORPUS.
IN RE J.S. ON HABEAS CORPUS.
IN RE K.T. ON HABEAS CORPUS.



The opinion of the court was delivered by: Baxter, J.

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); hereafter Proposition 83 or Jessica's Law). Proposition 83 was a wide-ranging initiative intended to "help Californians better protect themselves, their children, and their communities" (id., § 2, subd. (f)) from problems posed by sex offenders by "strengthen[ing] and improv[ing] the laws that punish and control sexual offenders" (id., § 31).

Among other revisions to the Penal Code,*fn1 Proposition 83 amended section 3003.5, a statute setting forth restrictions on where certain sex offenders subject to the lifetime registration requirement of section 290*fn2 may reside. New subdivision (b), added to section 3003.5, 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." (§ 3003.5, subd. (b) (section 3003.5(b).) The new residency restrictions took effect on November 8, 2006, the effective date of Proposition 83.

Subsequent to Proposition 83's enactment, the California Department of Corrections and Rehabilitation (CDCR) sought to enforce section 3003.5(b) as a statutory parole condition by serving notice on registered sex offenders released on parole after November 8, 2006, including these petitioners, requiring them to comply with the mandatory residency restrictions or face revocation of parole and reincarceration.

The unified petition for writ of habeas corpus here before us was filed by four registered sex offender parolees subject to the new mandatory residency restrictions. In each case, the petitioner was convicted of a sex offense or offenses, for which lifetime registration was required pursuant to section 290, well before the passage of Proposition 83. In each case, the petitioner was released from custody on his current parole after November 8, 2006, the effective date of the new law.

At the threshold, petitioners contend that enforcement of section 3003.5(b)'s residency restrictions as to them constitutes an impermissible retroactive application of the statute, in contravention of the general statutory presumption that Penal Code provisions operate prospectively (§ 3), because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83. In a closely related argument, petitioners contend that such retroactive enforcement of section 3003.5(b) further violates the ex post facto clauses of the United States and California Constitutions insofar as it " `makes more burdensome the punishment for a crime, after its commission.' " (Collins v. Youngblood (1990) 497 U.S. 37, 42.) Petitioners also contend section 3003.5(b) is an unreasonable, vague, and overbroad parole condition that infringes on various federal and state constitutional rights, including their privacy rights, property rights, right to intrastate travel, and substantive due process rights under the federal Constitution.

We issued orders to show cause with respect to each petitioner's claims, making them returnable before this court. We stayed enforcement of section 3003.5(b) as to these four named petitioners and consolidated their actions for purposes of briefing and oral argument in this court.

We have determined that petitioners' retroactivity and ex post facto claims, common to all four petitioners, can be addressed on the record currently before us. We conclude they lack merit and must be denied.

Petitioners' remaining claims - that section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on a number of their fundamental constitutional rights - present considerably more complex "as applied" challenges to the enforcement of the new residency restrictions in the respective jurisdictions to which each petitioner has been paroled. Petitioners are not all similarly situated with regard to their paroles. They have been paroled to different cities and counties within the state, and the extent of housing in compliance with section 3003.5(b) available to them during their terms of parole - a matter critical to deciding the merits of their "as applied" constitutional challenges - is not factually established on the declarations and materials appended to their petition and traverse. With regard to petitioners' remaining constitutional claims, evidentiary hearings will therefore have to be conducted to establish the relevant facts necessary to decide each claim.

The trial courts of the counties to which petitioners have been paroled are in the best position to conduct such hearings and find the relevant facts necessary to decide the remaining claims in their respective jurisdictions. These would include, but are not necessarily limited to, establishing each petitioner's current parole status; the precise location of each petitioner's current residence and its proximity to the nearest "public or private school, or park where children regularly gather" (§ 3003.5(b)); a factual assessment of the compliant housing available to petitioners and similarly situated registered sex offenders in the respective counties and communities to which they have been paroled; an assessment of the way in which the mandatory parole residency restrictions are currently being enforced in those particular jurisdictions; and a complete record of the protocol CDCR is currently following to enforce section 3003.5(b) in those jurisdictions consistent with its statutory obligation to "assist parolees in the transition between imprisonment and discharge." (§§ 3000, subd. (a)(1), 3074.)

Accordingly, the petition for writ of habeas corpus and orders to show cause previously issued with regard to each petitioner's remaining claims shall be ordered transferred to the appropriate Courts of Appeal with directions that each matter be transferred to the trial court in the county to which the petitioner has been paroled, for further proceedings consistent with the views expressed herein.

I. STATEMENT OF THE CASE

A. Proposition 83 and CDCR's Enforcement of Section 3003.5(b)

Proposition 83 was submitted to the voters on the November 7, 2006 ballot. The purpose of the initiative was described in section 2, which explains that "[s]ex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon," that they "prey on the most innocent members of our society," and that "[m]ore than two-thirds of the victims of rape and sexual assault are under the age of 18." (Prop. 83, § 2, subd. (b).) Section 2 further declares that "Californians have a right to know about the presence of sex offenders in their communities, near their schools, and around their children" (id., subd. (g)), and that "California must also take additional steps to monitor sex offenders, to protect the public from them, and to provide adequate penalties for and safeguards against sex offenders, particularly those who prey on children." (Id., subd. (h).) Section 2 also states, "It is the intent of the People in enacting this measure to help Californians better protect themselves, their children, and their communities; it is not the intent of the People to embarrass or harass persons convicted of sex offenses." (Id., subd. (f).)

As explained in the official ballot pamphlet, Proposition 83 sought to achieve its proponents' goal of creating "predator free zones around schools and parks to prevent sex offenders from living near where our children learn and play" through the enactment of mandatory residency restrictions in the form of an amendment to section 3003.5, a statute setting forth restrictions on where certain sex offenders subject to the lifetime registration requirement of section 290 may reside. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) argument in favor of Prop. 83, p. 46 (Voter Information Guide).) As noted, the initiative added new subdivision (b) to section 3003.5, making it "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." (§ 3003.5(b), added by Prop. 83, § 21.)

On August 17, 2007, the Division of Adult Parole Operations (DAPO) of CDCR issued Policy No. 07-36, pertaining to the enforcement of section 3003.5(b) upon parolees. (CDCR, Policy No. 07-36: Implementation of Proposition 83, aka Jessica's Law (Aug. 17, 2007) (Policy No. 07-36).) Under that policy, section 2616 of title 15 of the California Code of Regulations, setting forth grounds for revocation of parole, was revised to add "[v]violation of the residency restrictions set forth in Penal Code Section 3003.5 for parolees required to register as provided in Penal Code Section 290," as a reportable ground for revocation of parole. (Policy No. 07-36, supra, p. 1; see Cal. Code Regs., tit. 15, § 2616, subd. (a)(15).) The revised policy was applicable to "all parolees required to register as sex offenders pursuant to PC Section 290, released from custody on or after November 8, 2006," including the following parolee categories: "Initial [r]eleases," "Parole [v]iolators [w]ith a [n]ew [t]erm," "Parolees released after having served a period of revocation," and "Parolees released from any other jurisdiction's custody . . . ."*fn3 (Policy No. 07-36, at p. 1.)

Parole units were provided with two lists of registered sex offenders released on parole after November 8, 2006: those who were in compliance, and those who appeared to be out of compliance with the residency restrictions of section 3003.5(b). (Policy No. 07-36, supra, at p. 2.) Each parolee whose residence appeared to be out of compliance was to be served with a "Modified Condition of Parole Addendum" giving him 45 days within which to come into compliance with the residency restrictions or be subject to arrest and reincarceration for violating his parole. (Id., at pp. 5, 9.)

B. Petitioners

Petitioners are four registered sex offender parolees subject to the new mandatory parole residency restrictions. *fn4 As noted, in each case the petitioner was convicted of a sex offense or offenses for which lifetime registration was required pursuant to section 290 well before the passage of Proposition 83. In each case, the petitioner was released from prison on his current parole (after serving his latest term in prison custody for a nonsex offense) after November 8, 2006, the effective date of section 3003.5(b). Each petitioner was thereafter served with a 45-day letter imposing the residency restrictions as an additional statutory condition of parole.

1. E.J.

Petitioner E.J. was convicted of forcible rape (§ 261, subd. (2)) and robbery of an inhabited dwelling (former § 213.5, subd. (2)) in 1985 when he was 16 years old. The forcible rape conviction subjected him to the lifelong registration requirement of section 290. He served four years nine months in the California Youth Authority and was released in October 1989. In 1993, he was convicted of willful cruelty to a child (§ 273a, subd. (b)) and second degree robbery (§ 212.5). He served two years in prison for those offenses. In 2000, he was convicted of battery (§ 242) and possession of drug paraphernalia (Health & Saf. Code, § 11364). In 2004 he was convicted of failing to register under section 290, sentenced to prison, and paroled once again in August 2005. Thereafter, he suffered numerous additional parole violations and was returned to prison on three separate occasions. He was last released from prison custody on parole in February 2007, after the effective date of section 3003.5(b).

According to his declaration, in September 2007, E.J. lived with his wife and their children in an apartment in San Francisco. He was informed by his parole agent that his residence was not compliant with section 3003.5(b) and that he would have to locate compliant housing by October 2, 2007, or face revocation of parole. Thereafter, because the original notice was defective, he was given an additional 10 days to comply. E.J. claims his parole agent initially told him there was no compliant housing in San Francisco, but subsequently told him there is a "small area near AT&T Park that is not within 2,000 feet of a school or park." He declares, "I cannot afford to live near AT&T Park, as it is one of the most expensive areas in San Francisco. In addition, I do not believe that I would be able to establish a secure residence near AT&T Park because I believe that some law enforcement officials would consider it a park where children regularly gather." At the time he prepared his declaration, E.J. was unable to move into compliant housing and was preparing to declare himself homeless.

2. S.P.

In 1998, petitioner S.P., then a minor, was tried as an adult and convicted by guilty plea of rape where the victim (a 15-year-old girl) was prevented from resisting by reason of an intoxicating or controlled substance. (§ 261, subd. (a)(3).) He served three years eight months in prison and was released from custody on parole in August 2001. The rape conviction subjected S.P. to lifetime registration under section 290. In 2002, he was convicted of knowingly receiving or concealing stolen property (§ 496, subd. (a)), served an additional four years eight months in prison, and was paroled in August 2006. In early March 2007, S.P. was taken into custody and charged with a parole violation for driving the wrong way down a one-way street while in possession of an open container of alcohol. He pled no contest and was released from custody on parole to Santa Clara County on March 22, 2007, after the effective date of section 3003.5(b).

According to his declaration, in August 2007 S.P. was informed by his parole agent that he was in violation of the residency restrictions because the apartment where he lived with his mother was within 2,000 feet of a daycare facility. He was told that if he did not move by October 11, 2007, he would face parole revocation and return to prison. He asserts his parole agent told him that "it was my responsibility to find compliant housing and that he could not provide me with any assistance." He asked to transfer his parole out of Santa Clara County but was told by his parole agent that the process would take at least 60 days, by which time he would be in violation of the residency restrictions. At the time he filed his habeas corpus petition, S.P. and his mother had been unable to locate compliant housing in Santa Clara County.

3. J.S.

In 1985, petitioner J.S. was convicted of indecent exposure in Texas pursuant to Texas Penal Code section 21.08, subdivision (a), which provides, "A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act." As a result of his conviction, he has been subject to the lifetime registration requirement of section 290 while residing in California. (See Pen. Code, §§ 290, subd. (c), 290.005, subd. (a).)

After coming to California, J.S. was convicted in 1990 of exhibiting or using a deadly weapon (§ 417, subd. (a)(1)); in 1991 of voluntary manslaughter (§ 192, subd. (a)); in 1999 and 2000 of battery against a current or former spouse, fiancée or cohabitant (§ 243, subd. (e)(1)); and in 2000 of willful infliction of corporal injury on a spouse or roommate (§ 273.5, subd. (a)). Following this last conviction and prison term, J.S. was released on parole to San Diego County in March 2006. In February 2007, his parole was revoked for failure to register. He was returned to prison and again released on parole in May 2007, after the effective date of section 3003.5(b).

According to his declaration, in August 2007 J.S. was informed by his parole agent that he would have to move from his San Diego County residence because it was within 2,000 feet of an elementary school and a park. J.S. asked if he could move to another state; his parole agent initially agreed to help him but thereafter told him the process to transfer his parole out of state could not be completed before he was required to find housing in compliance with section 3003.5(b), and that if he could not do so he would have to declare himself homeless or face parole revocation and return to prison. He thereafter lost his state funding to pay the rent for his noncompliant housing, could not locate compliant housing, and declared himself homeless in late September 2007.

4. K.T.

In 1990, petitioner K.T. was convicted of forcible rape (§ 261, subd. (2)) and forcible oral copulation (§ 288a, subd. (c)(2)), for which he served a five-year prison term, and which convictions subjected him to the registration requirement of section 290. In 2001, he was convicted of felony grand theft (§ 487), returned to prison, and thereafter released on parole in January 2006. In June 2007, his parole was revoked based on his failure to register under section 290. Following his return to prison for the parole revocation, he was again released on parole to San Diego County in August 2007, after the effective date of section 3003.5(b).

According to his declaration, in August 2007, K.T. was served with formal notice that his residence was not in compliance with section 3003.5(b) because it was within 2,000 feet of an elementary school. At the time K.T. was living with his disabled wife, for whom he provided care, in a house owned by them. At the time he submitted his declaration, K.T. was attempting to find compliant housing. He further indicates he filed an emergency grievance request with CDCR that was denied, with his appeal currently pending.

C. The Petition for Writ of Habeas Corpus

On October 4, 2007, E.J., S.P., J.S., and K.T. filed a unified petition for writ of habeas corpus seeking to temporarily and permanently enjoin CDCR from enforcing section 3003.5(b) against them as a statutory condition of their paroles. Petitioners advance a number of challenges to the statute. At the threshold, they contend that enforcement of section 3003.5(b) as to them constitutes an impermissible retroactive application of the statute, in contravention of the general statutory presumption that Penal Code provisions operate prospectively (§ 3), because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83. In a closely related argument, petitioners contend that such retroactive enforcement of section 3003.5(b) further violates the ex post facto clauses of the United States Constitution (art. I, § 10) and the California Constitution (art. I, § 9) because it " `makes more burdensome the punishment for a crime, after its commission.' " (Collins v. Youngblood, supra, 497 U.S. at p. 42.) Petitioners also contend section 3003.5(b) is an unreasonable, vague, and overbroad parole condition that infringes on various state and federal constitutional rights, including their privacy rights, property rights, right to intrastate travel, and their substantive due process rights under the federal Constitution.

On October 10, 2007, we issued an order staying enforcement of section 3003.5(b) as to these four petitioners. On December 12, 2007, we issued orders to show cause with respect to each petitioner, returnable in this court.

II. ANALYSIS

A. Section 3003.5(b) Enforced as a Mandatory Parole Condition

Section 3003.5(b) makes it "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." (§ 3003.5(b).) In the official ballot pamphlet, the proponents of the initiative measure told the voters the intent behind section 3003.5(b) was to create "predator free zones around schools and parks to prevent sex offenders from living near where our children learn and play." (Voter Information Guide, supra, argument in favor of Prop. 83, at p. 46.) The Legislative Analyst told the voters that a violation of the new provision would constitute a parole violation for registered sex offenders on parole as well as a misdemeanor offense. (Id., analysis of Prop. 83 by Legis. Analyst, at p. 44.)

Each petitioner before us is a paroled registered sex offender who specifically challenges CDCR's attempts to enforce the new statutory residency restrictions against him as a ground for revocation of his parole. Section 3003.5 of the Penal Code is found in part 3, title 1, chapter 8 (entitled "Length of Term of Imprisonment and Paroles") and, as the section's language reflects, its provisions are ...


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