Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed as modified. (Super. Ct. No. 05NF4105).
The opinion of the court was delivered by: Ikola, J.
(on remand from Cal. Supreme Ct.)
CERTIFIED FOR PUBLICATION
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 (Apprendi).) The court's imposition of sex offender registration 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 (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.) 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 (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.
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 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).)*fn1 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.
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 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 see defendant still had his shorts up; she could not see his underwear or buttocks. L.C.'s clothing did not seem out of order, and her grandmother did not recall L.C. having to rearrange it. L.C. seemed scared to her grandmother, but was not crying. The grandmother denied L.C. had asked her, "Please don't tell my mother."
L.C.'s brothers also testified. One testified he saw L.C. standing with her back to the post, while defendant had his shorts down around his knees. He could see defendant's underwear. The other brother testified he saw L.C. standing with her back to the wall, while defendant had his shorts and his underwear down around his knees. He could see defendant's bare buttocks. Upon seeing this, the brother hopped off his skateboard and walked -- not ran -- back to the apartment to get the grandmother. He told her, "there's this guy out there on [L.C.] and she keeps telling him no." The brother testified the grandmother "ran out there" to get L.C. As L.C walked back to the apartment after defendant ran off, she was crying.
The defense closing argument focused on witness credibility. Defense counsel stated, "I told you in my opening, credibility is the issue here.... It all boils down to the witnesses and whether or not you believe them." Defense counsel walked the jury through L.C.'s and her grandmother's statements to the police and the trial testimony of L.C., her grandmother, and the brothers, pointing out discrepancies among the accounts. She stated, "[t]hey're not little inconsistencies.... These are big inconsistencies that matter."
Defense counsel urged the jury to consider finding defendant guilty of the lesser included offense of simple assault. (§ 240.) She argued, "There's also another lesser included offense that the district attorney did not tell you about, which will be in your [jury instruction ] packet. It's simple misdemeanor battery [sic]. [¶] If you were to believe, say, grandma's testimony that she gave in court, if you believe grandma's testimony that [defendant] was reaching for [L.C.] or that in any way he touched her, that would be a battery [sic], if there's any touching."*fn2
After a couple hours of deliberation, the jury found defendant guilty only of assault. It acquitted him of committing a lewd act on a minor. The court released defendant on his own recognizance until sentencing. It later sentenced defendant to serve six months in the county jail, with 180 days credit for time served.
Although the jury found defendant not guilty of any sexual offense, the court ordered defendant to register as a sex offender. (Former § 290, subd. (a)(2)(E), see § 290.006.) It noted, "We simply don't know what the jury -- why the jury acquitted the defendant. It's certainly not obvious that they disbelieved the witnesses." It considered, but rejected as unreliable, a psychologist's report stating defendant is not a pedophile or sexually violent predator and "has not manifested any unusual sexual deviation...."
The court found "the evidence established beyond a reasonable doubt that the defendant sexually assaulted the victim." It noted L.C.'s "truthful and sincere" testimony that defendant "grabbed her, kissed her, fondled her breasts, buttocks and the area between her legs, dropped his pants and inserted his penis into her vagina." It noted L.C.'s grandmother testified to seeing defendant struggle with L.C., and her brothers testified to seeing defendant with his pants down around his ankles. It found defendant was "even more likely" driven by sexual compulsion because he assaulted L.C. in an open carport, and the assault was "not an isolated incident" because he kissed her once before. It concluded, beyond a reasonable doubt, "the assault in this case was committed as a result of sexual compulsion or for purposes of sexual gratification." In addition, it found registration appropriate because defendant was physically dangerous to the public, at serious risk to reoffend, and not being treated for his sexual compulsion. It stayed registration pending appeal.
Defendant concedes his misdemeanor assault conviction, but challenges the sex offender registration requirement. In his opening brief, he contended sex offender registration was unwarranted by "the facts of this case,"*fn3 constituted cruel and unusual punishment, and violated his right to a jury trial. In his reply brief, defendant invoked Jessica's Law for the first time. He noted its residency restriction barred registered sex offenders from residing within 2,000 feet of any public or private school, or park where children regularly gather. (§ 3003.5, subd. (b).) He asserted "[t]his harsh change in circumstances calls for a re-examination" of whether sex offender registration constitutes punishment.
At our invitation, the parties filed supplemental briefs on whether defendant was subject to Jessica's Law's residency restriction and, if so, whether it constitutes punishment implicating defendant's right to a jury trial.*fn4 We affirmed defendant's conviction but reversed the registration requirement. (People v. Mosley (2008) 168 Cal.App.4th 512, review granted Mar. 24, 2009, S156933 (Mosley I).) We analyzed whether the residency restriction constitutes punishment using the factors set forth in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144 (Mendoza-Martinez), and determined "Jessica's Law's residency restriction has an overwhelming punitive effect." "Because the residency restriction is punitive," we held, "its imposition by the court increases the penalty for a non-sexual ...