(Los Angeles County Super. Ct. No. PV000512) (Los Angeles County Super. Ct. No. PV000533) (Los Angeles County Super. Ct. No. PV000712) APPEAL from an order of the Superior Court of Los Angeles County, Peter Paul Espinoza, Judge. Reversed.
The opinion of the court was delivered by: Suzukawa, J.
CERTIFIED FOR PUBLICATION
Appellant Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, appeals from the trial court's November 1, 2010 order staying enforcement of Penal Code section 3003.5, subdivision (b) as to all registered sex offenders on active parole in Los Angeles County pending the resolution of petitions seeking a writ of habeas corpus that had been previously filed. In issuing the order, the court concluded that enforcement of the statute led to the virtual banishment of those parolees from Los Angeles County and thus the statute was unconstitutional. We find the court erred and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
"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; hereinafter Proposition 83 or Jessica's Law)." (In re E.J. (2010) 47 Cal.4th 1258, 1263.) Proposition 83 revised the Penal Code in certain respects and included an amendment to Penal Code section 3003.5,*fn1 a statute that restricts where registered sex offenders on parole are allowed to reside. The initiative added section 3003.5, subdivision (b) (section 3003.5(b)) that 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." The restriction took effect on November 8, 2006, the effective date of Proposition 83. (In re E.J., supra, at p. 1263.)
Quoc Thai Pham, Harold P. Brown, and Arthur Lee Neal, Sr. (collectively, petitioners) each filed a petition for a writ of habeas corpus, seeking an order enjoining the enforcement of the residency restriction set forth in section 3003.5(b) as to himself.*fn2 The court issued orders directing Cate to show cause why the petitions should not be granted and stayed the enforcement of section 3003.5(b) as to petitioners. On September 28, the court consolidated the three matters.
On October 7, 2010, petitioners filed an application for a temporary stay of enforcement of section 3003.5(b) as to all registered sex offenders on active parole in Los Angeles County. On November 1, the trial court granted petitioners' application. Appellant filed a timely appeal.
On November 16, 2010, appellant filed a petition for a writ of supersedeas. On November 18, we issued a temporary stay of the trial court's November 1 order. Petitioners filed opposition to appellant's petition and a motion to dismiss the appeal. On January 11, 2011, we denied petitioners' motion to dismiss the appeal and appellant's petition for a writ of supersedeas, vacated the stay, and expedited the appeal.
I. The November 1 Order Is Appealable
Petitioners renew their argument that the appeal must be dismissed for lack of an appealable order. They contend the November 1 order is an interim stay and there is no statute authorizing an appeal. Appellant responds that section 1507 allows an appeal from a "final order in a habeas corpus matter that grants all or part of the relief sought" and that the superior court order is a preliminary injunction, which is appealable. Petitioners urge the temporary stay is not a final order or a preliminary injunction. We agree with appellant that the order is appealable.
The November 1 order restrains future action by appellant with respect to the enforcement of a specific parole condition pending further hearings. As such, it "partakes of the nature of a preliminary injunction" and is thus appealable. (Faucette v. Dunbar (1967) 253 Cal.App.2d 338, 340 [allowing appeal by Director of Department of Corrections of order barring the department from imposing as a condition of parole that parolee could not reside at a particular location or violating his parole for doing so pending full hearing on the issue].)
"In deciding whether to issue a preliminary injunction, a court must weigh two 'interrelated' factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction. [Citation.] Appellate review is limited to whether the trial court's decision was an abuse of discretion. [Citation.]" (Butt v. State of California (1992) 4 Cal.4th 668, 677-678.) "The party challenging the superior court's order has the burden of making a clear showing of such an abuse. [Citation.] Appellate courts typically state that an abuse of discretion occurs when the ...