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People v. Nguyen

California Court of Appeal, Fourth District, Third Division

January 10, 2014

The PEOPLE, Plaintiff and Appellant,
JeanPierre Cuong NGUYEN, Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Everett W. Dickey, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. (Super. Ct. No. 12HM12229 & 30-2012-00621002)

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Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Plaintiff and Appellant.

Frank Ospino, Public Defender, Mark S. Brown, Assistant Public Defender, and Scott Van Camp, Deputy Public Defender, for Defendant and Respondent.



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The District Attorney appeals from a judgment sustaining defendant JeanPierre Cuong Nguyen's demurrer to a misdemeanor complaint that charged him with violating a local ordinance that prohibits registered sex offenders from entering city parks and recreational facilities without written permission from the city's police chief. The trial court concluded state law preempted prosecution under the local ordinance because the Legislature has enacted a comprehensive statutory scheme regulating the daily life of sex offenders to reduce the risk of an offender committing a new offense. We agree. As explained below, we conclude the state statutory scheme imposing restrictions on a sex offender's daily life fully occupies the field and therefore preempts the city's efforts to restrict sex offenders from visiting city parks and recreational facilities.

We also conclude state law preempts the ordinance's requirement that sex offenders obtain written permission from the city's police chief before entering a city park and recreational facility. This regulation is simply a de facto registration requirement. But state law has long occupied the area of sex offender registration to the exclusion of local regulation and the city ordinance's written permission requirement amounts to an additional registration requirement imposed on sex offenders who wish to enter city parks. We decline to sever the written permission requirement from the city ordinance. To do so would result in an outright ban on sex offenders entering city parks

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and recreational facilities. But taking this step would substantially alter the meaning of the city ordinance as originally enacted because nothing in the language of the ordinance or its history suggests the city intended to bar sex offenders under all circumstances from city parks and recreational facilities.



Nguyen is a sex offender required to register with local law enforcement under Penal Code section 290.[1] In September 2012, he entered a public park in the City of Irvine without first obtaining written permission from the Irvine Police Chief. After learning of Nguyen's park visit, the District Attorney filed a misdemeanor complaint charging him with violating section 4-14-803 of the City of Irvine Municipal Code (Section 4-14-803). That section states, " Any person who is required to [166 Cal.Rptr.3d 594] register pursuant to California Penal Code section 290 et seq., where such registration is required by reason of an offense for which the person was convicted and in which a minor was the victim, and who enters upon or into any City park and recreational facility where children regularly gather without written permission from the Director of Public Safety/Chief of Police or his designee is guilty of a misdemeanor." (§ 4-14-803.) The ordinance broadly defines " City park and recreational facility" as " community parks, neighborhood parks, the Orange County Great Park, open space preserves, trails, including structures thereon, and all other lands and facilities under the ownership, operation or maintenance of the City that are utilized for public park or recreational purposes, whether passive or active." (Irvine Mun. Code, § 4-14-802.)

Nguyen demurred to the complaint, arguing Section 4-14-803 was invalid because (1) California's comprehensive statutory scheme governing the registration and regulation of sex offenders occupied the field and therefore preempted local ordinances imposing similar requirements; (2) the ordinance was unconstitutionally vague; and (3) the ordinance infringed on Nguyen's fundamental constitutional rights to intrastate travel, free speech, and freedom of association and assembly. The trial court sustained Nguyen's demurrer, finding state law preempted Section 4-14-803 and the ordinance was unconstitutionally vague and overbroad.

The District Attorney appealed to the Superior Court Appellate Division and requested it certify the appeal for immediate transfer to this court under California Rules of Court, rule 8.1005. The Appellate Division granted the request, explaining it " has determined that transfer is necessary to secure

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uniformity of decision, in that another case pertaining to the same or a closely related issue, People v. Godinez, 30-2011-530069, G47657, is currently pending before Division Three of the Fourth District Court of Appeal. Like Godinez, this matter presents the issue of whether local ordinances restricting the movements of registered sex offenders are void on grounds of State preemption." Upon receiving the Appellate Division's certification order, we ordered the appeal transferred to this court.



A. Governing Preemption Principles

" ‘ Under article XI, section 7 of the California Constitution, " [a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general [state] laws." [¶] " If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void." [Citations.] [¶] " A conflict exists if the local legislation ‘ " duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication." ’ " [Citations.]' [Citations.]" ( O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1067, 63 Cal.Rptr.3d 67, 162 P.3d 583, original italics ( O'Connell ).)

Nguyen does not argue Section 4-14-803 either duplicates or contradicts state law nor does he argue state law expressly preempts Section 4-14-803. Instead, Nguyen's primary challenge is that state law impliedly preempts Section 4-14-803 by fully occupying the field it regulates. The state impliedly preempts a field when " ‘ " (1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such [166 Cal.Rptr.3d 595] terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the" locality [citations].’ [Citation.]" ( American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1252, 23 Cal.Rptr.3d 453, 104 P.3d 813 ( American Financial ).)

" If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject were otherwise one properly characterized as a ‘ municipal affair.’ [Citations.]" (

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Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 808, 100 Cal.Rptr. 609, 494 P.2d 681; see also American Financial, supra, 34 Cal.4th at p. 1253, 23 Cal.Rptr.3d 453, 104 P.3d 813 [" ‘ Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned’ " ].) The Legislature's " ‘ intent with regard to occupying the field to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme.’ [Citations.]" ( American Financial, at p. 1252, 23 Cal.Rptr.3d 453, 104 P.3d 813.) The test for field preemption or occupation does not focus on the number of statutes involved, but on " whether the nature and extent of the coverage of a field is such that it could be said to display a patterned approach to the subject." ( Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166, 182, 36 Cal.Rptr.2d 886 ( Baldwin ); see also Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 708, 209 Cal.Rptr. 682, 693 P.2d 261 ( Fisher ).)

For example, in O'Connell, the Supreme Court considered whether state law impliedly preempted a local ordinance requiring an offender to forfeit any vehicle used " ‘ to acquire or attempt to acquire any controlled substance.’ " ( O'Connell, supra, 41 Cal.4th at p. 1066, 63 Cal.Rptr.3d 67, 162 P.3d 583, italics omitted.) To answer the question, the O'Connell court analyzed the state's Uniform Controlled Substances Act (Health & Saf.Code, § 11000 et seq.; UCSA) as a whole, including its detailed provisions regulating the lawful use and distribution of controlled substances, defining criminal offenses involving the unlawful possession, distribution, and sale of controlled substances, and the penalties for those offenses. The UCSA imposed the penalty of vehicle forfeiture for the sale and distribution of large quantities of controlled substances, but unlike the local ordinance it did not impose vehicle forfeiture as a penalty for purchasing or attempting to purchase small quantities of a controlled substance. ( O'Connell, at pp. 1069-1071, 63 Cal.Rptr.3d 67, 162 P.3d 583.)

Based on its review of the entire UCSA, the O'Connell court concluded state law impliedly preempted the local ordinance because the UCSA fully occupied the field of penalizing crimes involving controlled substances: " The comprehensive nature of the UCSA in defining drug crimes and specifying penalties (including forfeiture) is so thorough and detailed as to manifest the Legislature's intent to preclude local regulation." ( O'Connell, supra, 41 Cal.4th at p. 1071, 63 Cal.Rptr.3d 67, 162 P.3d 583.) The Legislature's decision to omit vehicle forfeiture as a penalty for possessing drugs below a specified amount prevented local authorities from imposing the omitted penalty on those same offenses [166 Cal.Rptr.3d 596] because the Legislature's comprehensive statutory scheme " manifest[ed] a clear intent to reserve that severe penalty for very serious drug crimes involving the manufacture, sale, or possession for sale of specified amounts of certain controlled substances." ( Id. at p. 1072, 63 Cal.Rptr.3d 67, 162 P.3d 583; In re Lane (1962) 58 Cal.2d 99, 103-104, 22 Cal.Rptr. 857, 372 P.2d 897 ( Lane ) [extensive state statutory

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scheme regulating criminal aspects of sexual activity preempted local ordinance outlawing fornication and adultery even though the state statutes did not outlaw those specific acts; " It is therefore clear that the Legislature has determined by implication that such conduct shall not be criminal in this state" ].)

In finding the ordinance preempted, the O'Connell court criticized an earlier appellate decision that found the UCSA did not preempt a similar ordinance requiring vehicle forfeiture. That earlier decision upheld the local ordinance because the UCSA was " ‘ silent with regard to vehicles used by drug buyers' " and therefore the " ordinance covered an area of law ‘ untouched by statewide legislation.’ " ( O'Connell, supra, 41 Cal.4th at p. 1072, 63 Cal.Rptr.3d 67, 162 P.3d 583, quoting and disapproving Horton v. City of Oakland (2000) 82 Cal.App.4th 580, 586, 98 Cal.Rptr.2d 371, italics omitted.) The Supreme Court explained this earlier appellate decision erred by " focusing solely on the UCSA's forfeiture provisions ... [without] consider[ing] the UCSA's comprehensive scheme of drug crime penalties, which include forfeiture of various items of property, including vehicles, when used in specified serious drug offenses." ( O'Connell, at p. 1072, 63 Cal.Rptr.3d 67, 162 P.3d 583.)

In American Financial, the Supreme Court likewise examined the state's entire statutory scheme regarding predatory lending practices in the home mortgage industry to determine whether state law impliedly preempted a local ordinance that imposed higher standards and covered more mortgage loans than the state scheme. ( American Financial, supra, 34 Cal.4th at pp. 1246-1251, 23 Cal.Rptr.3d 453, 104 P.3d 813.) The American Financial court found the state statutes defining what mortgages were covered, what lending acts were prohibited, who could be held liable for statutory violations, the available enforcement mechanisms, and the defenses to any purported violations were " ‘ so extensive in their scope that they clearly show[ed] an intention by the Legislature to adopt a general scheme for the regulation of’ predatory lending tactics in home mortgages. [Citation.]" ( Id. at pp. 1254-1255, 23 Cal.Rptr.3d 453, 104 P.3d 813.) By purporting to augment the state statutes, the local ordinance " revisit[ed]" an area fully occupied by state law and " undermine[d] the considered judgments and choices of the Legislature" in adopting the statutes. ( Id. at p. 1257, 23 Cal.Rptr.3d 453, 104 P.3d 813.) Accordingly, state law preempted the local ordinance, including mortgages the state's statutory scheme did not cover. ( Id. at p. 1258, 23 Cal.Rptr.3d 453, 104 P.3d 813.)

In contrast, the Supreme Court's recent decision in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 156 Cal.Rptr.3d 409, 300 P.3d 494 ( City of Riverside ), concluded state law did not preempt a local land use ordinance banning medical marijuana dispensaries because state law did not establish a ...

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