APPEAL from orders of the Superior Court of San Diego County, Michael D. Wellington, Judge. (Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) (San Diego County Super. Ct. Nos. HC19742, HC19731, HC19612, HC19743)
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (CDCR), appeals the order enjoining CDCR from enforcing the residency restriction of "Jessica's Law" on the ground that the blanket restriction is unconstitutional as a parole condition as it applies to registered sex offenders on parole in San Diego County.
In November 2006, the voters of California adopted Proposition 83, "The Sexual Predator Punishment and Control Act: Jessica's Law." Among other things, the proposition enacted revisions to the Penal Code,*fn1 including one that made it illegal for registered sex offenders "to reside within 2000 feet of any public or private school, or park where children regularly gather." (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 135.) The residency restriction is codified at section 3003.5, subdivision (b) (section 3003.5(b)). The drafters of Jessica's Law assured voters this provision would establish "predator free zones around schools and parks to prevent sex offenders from living near where . . . children learn and play." (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) argument in favor of Prop. 83, p. 46.) Subsequently, the CDCR adopted a policy to enforce the residency restriction as a parole condition for registered sex offenders.
William Taylor, Jeffrey Glynn, Julie Briley and Stephen Todd (collectively, petitioners) are four of the more than 150 registered sex offender parolees in San Diego County who filed habeas corpus petitions challenging the constitutionally of the residency restriction. The petitions of Taylor, Glynn, Briley and Todd were chosen to be the lead cases for purposes of establishing an evidentiary record to address the " 'as-applied' " constitutionality of the restriction. (In re E.J. (2010) 47 Cal.4th 1258, 1281.)
This proceeding is an outgrowth of our Supreme Court's decision in In re E.J., supra, 47 Cal.4th 1258, a consolidated habeas corpus proceeding, in which four*fn2 registered sex offenders on parole for nonsex offenses committed before the passage of Proposition 83, but released on parole afterward, challenged the constitutionality of the residency restriction as a parole condition pursuant to CDCR policy. (Id. at pp. 1263-1264.) The Supreme Court rejected arguments that CDCR's enforcement of the residency restriction as a condition of parole was a retroactive application of the law and violated constitutional prohibitions against ex post facto laws. (Id. at pp. 1264, 1272, 1280.)
However, the E.J. petitioners also claimed that "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." (In re E.J., supra, 47 Cal.4th at p. 1280.) Noting that these claims were "considerably more complex 'as applied' challenges" and the evidentiary record before it was insufficient to decide them, the Supreme Court remanded the cases to the trial courts of the counties to which the E.J. petitioners had been paroled to hold evidentiary hearings. (Id. at pp. 1281, 1284.)
By May 2010, the two E.J. petitioners from San Diego County had been discharged from parole and their cases were dismissed as moot. Meanwhile, about three dozen other registered sex offender parolees had filed habeas corpus petitions in San Diego Superior Court and had been granted temporary stays of the enforcement of section 3003.5(b). The parties agreed the evidentiary hearing ordered by the Supreme Court in E.J. would focus on the petitions filed by Taylor, Glynn, Briley and Todd.
On February 18, 2011, following an eight-day evidentiary hearing, the trial court issued its statement of decision (SOD). The court found the residency restriction--when enforced as a parole condition--was "unconstitutionally 'unreasonable' " as applied to the lead petitioners because it violated petitioners' right to intrastate travel, their right to establish a home and their right to privacy and was not narrowly drawn and specifically tailored to the individual circumstances of each sex offender parolee. The court found "the fundamental vice of section 3003.5(b) as a parole condition . . . [is i]t is not narrowly drawn, much less specifically tailored to the individual. It applies as a blanket proscription, blindly applied to all registered sex offenders on parole without consideration of the circumstances or history of the individual case."*fn3 The court ordered the CDCR to cease applying section 3003.5(b) as a parole condition against the four lead petitioners.
At the same time, the court pointed out parole agents will continue to have the discretion to impose special conditions on sex offender parolees that mirror the residency restriction of section 3003.5(b) or are even more restrictive than its 2,000-feet minimum requirement based on the specific circumstances of the individual parolee.
On March 10, the court issued a supplemental statement of decision (Supp. SOD), which ordered the CDCR to cease applying section 3003.5(b) as a blanket parole condition against all registered sex offender parolees under supervision in San Diego County.*fn4
In In re E.J., supra, 47 Cal.4th at pages 1283 to 1284, the Supreme Court set forth an agenda for the remanded evidentiary hearings: to "find the relevant facts necessary to decide the claims . . . includ[ing], but 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 each particular jurisdiction; and a complete record of the protocol CDCR is currently following to enforce section 3003.5(b) in those respective jurisdictions."
Taylor was paroled in January 2008 after serving a sentence for failing to register as a sex offender. (§ 290.)*fn5 He is required to register as a sex offender because in 1991 he was convicted of sexual assault in Arizona.*fn6 (§ 290.005.) The victim in that case was an adult woman. Although Taylor has a long criminal history, including convictions for theft offenses, weapon possessions and drug offenses, he has never been convicted of another sex crime or a crime involving a child.
Taylor has AIDS and throat cancer. He also suffers from diabetes, chronic hypertension, scleroderma, peripheral neuropathy, sciatica, kidney stones, a torn ligament in his right knee, glaucoma and sleep apnea. Taylor has had three strokes and one heart attack. He is chronically depressed, suffers from paranoid schizophrenia and is addicted to cocaine.
Taylor had planned to live in Spring Valley with his nephew and his nephew's wife, who is a health care professional. However, the nephew's residence is not compliant with the 2,000-foot residency restriction of section 3003.5(b). Taylor, who is destitute, asked his parole agent for financial assistance housing, but was turned down. Subsequently, Taylor slept outside in the alley behind the parole office--a location pointed out to him by his parole agent. He remained homeless for a month and then was arrested for using cocaine.
When Taylor was re-released on parole, he was admitted to the Etheridge Center, a residential drug treatment program near downtown San Diego and near the clinic where he was receiving treatment for AIDS. However, the Etheridge Center is not compliant with the residence restriction of section 3003.5(b). CDCR allowed Taylor to stay there while his application for a waiver of the 2,000-foot restriction was processed. When Taylor's application was denied, he was given two days to move out. On October 2, 2009, the court issued Taylor an emergency 120-day stay, which enjoined the CDCR from requiring him to leave Etheridge Center unless alternative accommodations for medical treatment could be arranged.
However, the Etheridge Center suspended Taylor for 30 days for non-sexual misconduct on Halloween, and he was subsequently arrested for another parole violation. While in custody, his temporary injunction expired. Upon his release on parole, Taylor was homeless for a few weeks until CDCR placed him in a boarding house in Vista, which was a three-hour bus ride from his parole office, the outpatient clinic he was required to attend and the medical facility that had agreed to provide his medical care. While in the Vista facility, Taylor collapsed and was hospitalized in the intensive care unit. His parole agent warned Taylor he would be arrested if did not register the hospital address with local authorities within five days. Taylor's parole was revoked for not registering the hospital address and for possession of drug paraphernalia. Upon his release on parole, Taylor lived in a compliant hotel with the CDCR paying the rent for 60 days. At the time of the evidentiary hearing, Taylor was living in the hotel.
In 2009, Glynn was released on parole after serving a sentence for a theft related crime. He is a registered sex offender because of his 1989 conviction of misdemeanor sexual battery committed against an adult woman he had been dating.*fn7 That conviction is his only sex crime, but he has numerous convictions for theft offenses and drug offenses.
Glynn planned to live with his wife and their three children when he was paroled, but the family's residence was not compliant with the residency restriction of Jessica's Law. Glynn's wife did not want to move, and he was unable to find compliant housing in the area. Glynn purchased a van and lived in it as a transient. In December 2009, the court granted Glynn's motion for a temporary injunction against the residence restriction. However, this occurred a week after Glynn committed a burglary. When Glynn was paroled again in August 2010, he moved into the family's noncompliant apartment by virtue of the previously issued injunction and was living there at the time of the evidentiary hearing.
In April 2009, Briley was released on parole after serving a prison term for failing to register as a sex offender. Briley is required to register because of her 1988 conviction of committing a lewd and lascivious act on a child under the age of 14 years. (§288, subd. (a).) The victim was Briley's daughter and occurred inside the family residence. Since then, Briley has been sex offense free, but has numerous convictions for drug offenses and failing to register as a sex offender.
Briley had planned to live with her sister upon her release, but her sister's residence is not compliant with the 2,000-foot residency restriction.*fn8 The residency restriction also prevented Briley from living with her sister-in-law or in any of the women shelters with an available bed or sober living houses for women. After learning from a parole agent that other homeless parolees slept in an alley near the parole office, Briley began sleeping there. She was not alone; about 15 to 20 people slept there. Briley, who has hepatitis C, high blood pressure, thyroid problems and osteoarthritis, which is aggravated by exposure to cold temperatures, lived there for approximately one and one-half years.
In July 2009, the court granted Briley a temporary injunction against the residency restriction, but she was unable to find affordable housing until November 2010. At the time of the evidentiary hearing, Briley lived in a recreational vehicle parked at a noncompliant location in return for five hours of work each week. She has two other part-time jobs, which together pay her approximately $250 a month.
In June 2008, Todd was released on parole after serving a prison term for drug possession. He is required to register as a sex offender because in 1981, when he was 15 years old, he molested his 10-year-old sister. The juvenile court made a true finding that Todd committed a lewd and lascivious act with a child under 14 years old. (§ 288, subd. (a).)*fn10 Todd does not have any other sex crime convictions or convictions of crimes involving children, but his criminal history includes convictions for assault with a deadly weapon, burglary, vehicle theft, receiving stolen property and drug offenses.
Todd suffers from bipolar disorder. He is also diabetic and subject to seizures, which are exacerbated when he is homeless. Todd is unable to hold his head up for long periods because of nerve damage along the right side of his body. Todd also is a recovering heroin addict and has been addicted to methamphetamine for 18 years.
Upon his release from prison in 2008, Todd planned to stay with a friend at the Plaza Hotel in downtown San Diego, but he could not because of the 2,000-foot residency restriction. Unable to find compliant housing, Todd followed his parole agent's suggestion that he live in the bed of the San Diego River.
Over the next one and one-half years, Todd was arrested and his parole was revoked numerous times for violating various parole conditions. Throughout that time, Todd was ...