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Superior Court of Orange County, No. 05NF4105, David A. Hoffer, Judge. Court of Appeal, Fourth Appellate District, No. G038379.
Allison H. Ting and George L. Schraer, under appointments by the Supreme Court, for Defendant and Appellant.
Stephen P. Lipson, Public Defender (Ventura), and Michael C. McMahon for California Public Defenders Association as Amicus Curiae on behalf of Defendant and Appellant.
Richard Such for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant.
Christina Allbright for California Coalition on Sexual Offending and The Association for the Treatment of Sexual Abusers as Amici Curiae on behalf of Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Michael P. Farrell, Assistant Attorneys General, Donald E. de Nichola, Deputy State Solicitor General, Peter Quon, Jr., Lilia E. Garcia, Angela M. Borzachillo, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Baxter,[*] J., with Cantil-Sakauye C. J., Chin, Corrigan, and Grover, [**] JJ., concurring. Concurring and dissenting opinion by Liu, J., with Werdegar, J., concurring.
[344 P.3d 789] [185 Cal.Rptr.3d 253]
We confront a single, narrow issue. Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] ( Apprendi ) held that the Sixth Amendment generally requires a jury to find " any fact that increases the penalty for a crime beyond the prescribed statutory maximum." (530 U.S. at p. 490, italics added.) If a judge makes the findings underlying his or her discretionary order that a convicted criminal defendant must register as a sex offender, is the order invalid under Apprendi insofar as it includes registered sex offender residency [344 P.3d 790] restrictions imposed by 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)? We conclude the answer is no.
California law has long required persons convicted of certain specified sex crimes, including commission of a lewd act on a child under 14 (Pen. Code, § 288, subd. (a) (section 288(a))  to register as sex offenders as long as they live or work in California. (§ 290, subds. (b), (c).) If the conviction is for an offense other than those automatically requiring registration, the court may nonetheless exercise its discretion to impose a registration requirement if the court finds the offense was sexually motivated or compelled, and that registration is justified by the defendant's risk of reoffense. (§ 290.006; see People v. Garcia (2008) 161 Cal.App.4th 475, 485 [74 Cal.Rptr.3d 681]; cf. People v. Hofsheier (2006) 37 Cal.4th 1185, 1196-1197 [39 Cal.Rptr.3d 821, 129 P.3d 29] ( Hofsheier ), overruled on other grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871 [183 Cal.Rptr.3d 96, 341 P.3d 1075].)
On November 7, 2006, the voters enacted Proposition 83. Among other things, the initiative measure sought 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, Gen. Elec. (Nov. 7, 2006) (Voter Information Guide) argument in favor of Prop. 83, p. 46, italics & capitalization omitted.) To this end, Proposition 83 added new subdivision (b) to an existing statute, section 3003.5.
Prior to Proposition 83, section 3003.5, codified among laws dealing with parole, had limited the rights of parolee sex offender registrants, while on parole, to live with other registered sex offenders. ( Id., subd. (a).) As added by the initiative measure, subdivision (b) of section 3003.5 (hereafter section 3003.5(b)) declares: " Notwithstanding any other provision of law, it is
unlawful for any person for whom registration [as a sex offender] is required ... to reside within 2000 feet of any public or private school, or park where children regularly gather." (Italics added.)
Here, defendant's 2003 conduct with a 12-year-old girl led to a charge he committed a lewd act on a child under 14. In a 2007 trial, the jury acquitted him of that crime, but convicted him of the lesser misdemeanor offense of simple assault. At sentencing, the court exercised its discretion to order him to register as a sex offender. To support this action, the court found, as specified in section 290.006, that [185 Cal.Rptr.3d 254] the assault was committed " as a result of sexual compulsion or for purposes of sexual gratification." The court further determined that defendant was physically dangerous to the public, at serious risk to reoffend, and not being treated for his sexual compulsion.
The Court of Appeal accepted defendant's argument that the registration order is invalid under Apprendi because the trial judge, and not a jury, made the predicate factual findings. The appellate court was persuaded by well-settled authority that a requirement to register as a sex offender is not, in and of itself, a criminal penalty, or punishment, for the conviction that led to imposition of the requirement. But the court concluded that the residency restrictions of Jessica's Law are punitive, that the initiative measure made these restrictions an integral part of every registration order, including defendant's, and that the lack of jury findings to support the instant order thus violated Apprendi.
On review, the People urge at the outset that even if the residency restrictions of Jessica's Law are punitive, they do not invalidate defendant's registration order because they simply do not apply to this order. The People posit that as a matter of statutory intent, section 3003.5(b)'s residency restrictions apply only to parolees while they are on parole, and have no effect on a nonparolee misdemeanant such as defendant.
We need not, and do not, decide this threshold issue of statutory construction in order to resolve the narrow Apprendi issue before us. Even if we assume, as defendant insists, that section 3003.5(b) does apply to [344 P.3d 791] him, we are persuaded, for three separate and independently dispositive reasons, that Apprendi does not invalidate his registration order.
First, as the People also argue, the effect of Apprendi on the residency restrictions of Jessica's Law is obviated by a post- Apprendi decision, Oregon v. Ice (2009) 555 U.S. 160 [172 L.Ed.2d 517, 129 S.Ct. 711] ( Ice ). In Ice, the high court concluded that the Sixth Amendment's protections must be viewed in light of the jury trial right as it existed at the time the Constitution was adopted, and cannot intrude unduly on the sovereign states' historical
dominion over the subsequent development of their penal systems. Hence, the Ice court determined, Apprendi has no application to sentencing decisions in which juries played no factfinding role at common law. Sentencing choices such as sex offender residency restrictions are devices, developed by the sovereign states in more modern times, that were not historically entrusted to juries. A requirement that juries must always authorize them would often interfere with their intended and effective implementation. Thus, we need not inquire further into whether they are or are not punitive in order to conclude they are not limited by Apprendi.
Second, we disagree in any event that the residency restrictions constitute a penalty for purposes of Apprendi. Under tests traditionally employed to determine what constitutes punishment for constitutional purposes, the residency restrictions, like sex offender registration itself, cannot facially be considered anything other than a legitimate, nonpunitive regulatory device. Their manifest intent is not to exact retribution, or to deter by threat of sanction, but to promote public safety by physically insulating vulnerable children from potentially recidivist registered sex offenders who might prey upon them. The restrictions may impose significant life difficulties in particular situations or communities,  [185 Cal.Rptr.3d 255] but they do not so resemble historical forms of punishment, and are not, on their face, so onerous, disabling, irrational, or overbroad as to require a conclusion that their punitive effect overrides their regulatory purpose.
Third, even if the residency restrictions of Jessica's Law did require jury findings under Apprendi, this would not mean a registration order unsupported by such findings must be struck. No reason appears why the nonpunitive registration order itself should not survive in such a case, even if the attendant residency restrictions were unenforceable.
For these multiple reasons, we conclude the Court of Appeal erred in holding, under Apprendi, that defendant's sex offender registration order is invalid. Accordingly, we will reverse the Court of Appeal's judgment insofar as it struck the order from defendant's conviction.
Facts and Procedural Background
In October 2005, the Orange County District Attorney charged defendant by information with one count of committing a lewd act upon a child under the age of 14. (§ 288(a).)
The case was tried in 2007. Lori C., the minor victim, testified that one day in June 2003, while she was staying at her grandmother's apartment in Anaheim, she met defendant Steven Lloyd Mosley, who was 18 years old at the time. She told defendant she was 12 years old. That evening Lori went to the apartment complex laundry room. Defendant walked up behind her, and when she turned around, he kissed her on the mouth.
Approximately three days later, Lori was in the apartment complex carport. Defendant approached her and kissed her on the neck, telling her to relax and not say anything. Lori tried to move away, but defendant held her wrists and pinned her to the wall with the weight of his body so she could not move. Defendant tried to stick his tongue into her mouth. He then put his hand up her shirt and down her pants, grabbing her breasts and buttocks and rubbing her between her legs. Pulling down his own shorts and pulling Lori's skirt to one side, [344 P.3d 792] defendant put his penis in Lori's vagina " for about two minutes."
Lori's older brother, who was approximately 14 years old at the time of the incident, saw defendant standing in front of Lori with his shorts pulled down around his knees and the bottom of the shorts touching the ground. Lori's younger brother, who was approximately 11 years old at the time of the incident, also saw defendant with his shorts pulled down to his knees and his arms around Lori, who was pinned up against a wall. Her younger brother could see defendant's naked buttocks, and heard his sister say " no" to defendant at least three times. He went and told his grandmother, who came outside and saw Lori struggling with defendant. She called out Lori's name and yelled to defendant, " What are you doing? She's only twelve." Defendant turned around, saw the grandmother, and fled by jumping over a wall.
Scared, confused, and embarrassed, Lori did not tell anyone else about the assault until several months later when she confided in her father and he reported the incident to the police. An Orange County Sheriff's Department investigator interviewed Lori in August 2003 and again in September 2005. During the interviews, Lori related substantially the same account of events to which she would later [185 Cal.Rptr.3d 256] testify at trial. The Orange County Sheriff's Department did not request a sexual assault examination due to the passage of time, but Lori's parents took her for a medical examination to determine if she had contracted any sexually transmitted diseases as a result of the assault.
The jury acquitted defendant of the charge of committing a lewd act on a child under 14, but convicted him of the lesser included offense of simple assault, a misdemeanor. (§ 240.) Defendant was sentenced to six months in the county jail with 180 days' credit for time served.
Although the jury found defendant not guilty of the charged sexual offense and guilty only of assault, the trial court exercised its discretion to order
defendant to register as a sex offender pursuant to former section 290, subdivision (a)(2)(E).  The court 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." As required, the court stated on the record the reasons for its findings and the reasons it was requiring registration. (§ 290.006.) It found the evidence established beyond a reasonable doubt that " the assault in this case was committed as a result of sexual compulsion or for purposes of sexual gratification."  It took note of Lori'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 Lori's grandmother testified she saw Lori struggling with defendant, and her brothers each testified they saw Lori with her back to the wall and defendant leaning against her with his pants down around his ankles. The court found defendant was " even more likely" driven by sexual compulsion because he assaulted Lori in an open carport, and the assault was " not an isolated incident" because he had approached and kissed her once before. In addition, the court found registration was appropriate because defendant was physically dangerous to the public, at serious risk to reoffend, and not under treatment for his [344 P.3d 793] sexual compulsion. The registration order was stayed pending appeal.
On appeal, defendant conceded the validity of his misdemeanor assault conviction but challenged the registration order as factually unwarranted, and thus an abuse of the trial court's discretion. For the first time in his reply brief, defendant raised the additional claim that the order was invalid under Apprendi because it included the residency restrictions set forth in Jessica's Law.  Defendant argued that, [185 Cal.Rptr.3d 257] by barring him as a registered sex offender from residing within 2,000 feet of schools or parks where children gather
(§ 3003.5(b)), the restrictions increased the penalty for his assault conviction beyond the statutory maximum. Accordingly, he urged, because the trial court, and not the jury, had found the facts required to support the discretionary registration order, the order violated his Apprendi jury trial guarantee and must be stricken.
In its first opinion ( Mosley I ), the Court of Appeal rejected defendant's abuse of discretion claim, but agreed with his Apprendi argument. The appellate court reasoned that defendant, who was subject to the registration requirement, was also subject to the residency restrictions under section 3003.5(b)'s plain and express terms. Thus, the court ruled, Apprendi required the facts necessary to support the order to be found by a jury beyond a reasonable doubt, because the residency restrictions, analyzed under the multifactor " intent/effects" test set forth in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144 [9 L.Ed.2d 644, 83 S.Ct. 554] ( Mendoza-Martinez ), " [have] an overwhelming punitive effect" and served to increase the punishment for defendant's assault conviction beyond the statutory maximum.
We granted review in Mosley I, ordered briefing deferred, and held the matter for the then pending decision in In re E.J. (2010) 47 Cal.4th 1258 [104 Cal.Rptr.3d 165, 223 P.3d 31] ( E.J. ). In E.J., we subsequently rejected an ex post facto challenge to the residency restrictions, as applied to four registered sex offenders who committed crimes prior to Jessica's Law, but who were released on parole for those crimes after the initiative measure became effective. We held that including the residency restrictions as mandatory parole conditions did not violate the ex post facto clauses by imposing punishment for the earlier crimes beyond that applicable when they were committed. We explained that the residency restrictions applied " to events occurring after" the statute's effective date--the release of the petitioners on parole, and their subsequent residency in noncompliant housing, and thus did not constitute punishment for the original offenses. (47 Cal.4th at p. 1280, italics added.)
After our decision in E.J. became final we retransferred the cause in Mosley I to the Court of Appeal for reconsideration in light of our holding in E.J. In a second published opinion, the Court of Appeal again concluded defendant was subject to the residency restrictions by virtue of the registration order, and that although sex offender registration itself may be regulatory, the restrictions, under application of the Mendoza-Martinez test, have an " overwhelming punitive effect." Accordingly, the Court of Appeal again struck the trial court's registration order, affirming the judgment of conviction as so modified.
We granted the People's petition for review. 
As noted, in Apprendi, the high court established that a criminal defendant generally has the Sixth Amendment right to a jury determination, beyond reasonable doubt, of " any fact that increases the penalty [185 Cal.Rptr.3d 258] for a crime beyond the prescribed statutory maximum." ( Apprendi, supra, 530 U.S. at p. 490.) [344 P.3d 794] Defendant claims that his registration order is invalid because it increased the maximum penalty, or punishment, for his simple assault conviction and was imposed solely on the basis of findings made by a judge, not a jury.
Defendant concedes that sex offender registration itself does not constitute a penalty, or punishment, for purposes of constitutional analysis. (See, e.g., Smith v. Doe (2003) 538 U.S. 84, 93, 105-106 [155 L.Ed.2d 164, 123 S.Ct. 1140] [sex offender registration statutes serve the legitimate nonpunitive governmental objective of protecting the public from sex offenders]; People v. Picklesimer (2010) 48 Cal.4th 330, 343-344 [106 Cal.Rptr.3d 239, 226 P.3d 348] ( Picklesimer ) [because sex offender registration is not punishment, Apprendi does not require jury findings to support registration order]; People v. Presley (2007) 156 Cal.App.4th 1027, 1033-1035 [67 Cal.Rptr.3d 826] [same].) But he urges, and the Court of Appeal agreed, that the residency restrictions established by Jessica's Law are punitive, and that jury findings were thus required to support the registration order to which the restrictions attached.
The People oppose this conclusion on multiple grounds. They first urge that defendant's Apprendi argument fails at the threshold, because, contrary to his insistence, his registration order does not include any obligation to comply with the residency restrictions of Jessica's Law. The People posit that the residency restrictions of section 3003.5(b) apply only to paroled sex offender registrants while they are on parole, and have no effect on nonparolee registrants such as defendant.
However, we need not, and do not, decide this threshold statutory construction issue in advance of any concrete evidence of prosecutors' intent to press charges against nonparolee sex offender registrants for noncompliance with the residency restrictions.  Even if we assume the restrictions do impose
criminally enforceable [185 Cal.Rptr.3d 259] obligations on nonparolee registrants such as defendant, we are persuaded, for three independently dispositive reasons, that Apprendi does not invalidate the registration order here at issue. We explain our conclusions in detail.
A. Apprendi and Oregon v. Ice.
In Apprendi, the defendant pleaded guilty to two counts of unlawful weapons possession and one count of unlawful possession of a bomb. A separate New Jersey hate crime statute provided for an " 'extended term' of imprisonment if the trial judge [found], by a preponderance of the evidence, that '[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.' " ( Apprendi, supra, 530 U.S. at pp. 468-469.) None of the [344 P.3d 795] charged counts referred to the hate crime statute, and none alleged that Apprendi had acted with a racially biased purpose. At sentencing, the trial court found, by a preponderance of the evidence, that Apprendi's crime under one count to which he had pled guilty was motivated by racial bias within the meaning of the hate crime statute, which court-made finding resulted in an increased term of imprisonment for that count. ( Id. at pp. 470-471.)
The high court in Apprendi observed that the Sixth Amendment right to trial by jury, and the Fourteenth Amendment right to due process of law in criminal matters, " constitutional protections of surpassing importance" ( Apprendi, supra, 530 U.S. at p. 476), together " indisputably entitle a criminal defendant to 'a jury determination that [he or she] is guilty of every
element of the crime with which he [or she] is charged, beyond a reasonable doubt'" ( id. at p. 477). The court further found that the Sixth Amendment jury trial right applied equally to any enhancements to the crime used to impose additional punishment. (530 U.S. at p. 476.) The court summarized its holding as follows: " Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." ( Id. at p. 490.)
In decisions that followed in the wake of Apprendi, the high court expounded on what it meant by the phrase " any fact that increases the penalty for a crime beyond the prescribed statutory maximum." ( Apprendi, supra, 530 U.S. at p. 490, italics added.) In Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428] ( Ring ), the court held that allowing the sentencing judge, rather than the jury, to find aggravating circumstances necessary to impose the death penalty violates a capital defendant's Sixth Amendment jury trial right under Apprendi. ( Ring, at pp. 602, 609.) In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] ( Blakely ), the court held that " the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." ( Id. at p. 303.) In United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621, 125 S.Ct. 738] ( Booker ), the court held that the federal sentencing guidelines violated the Sixth Amendment right to a jury trial by allowing the court to impose sentence enhancements based on its own factfinding, and severed the guideline provisions that made them mandatory. ( Booker, at pp. 226-227.) The court in Booker explained that one principle it sought to vindicate in Apprendi was the avoidance of " 'arbitrary [185 Cal.Rptr.3d 260] punishments upon arbitrary convictions' without the benefit of a jury." ( Id. at pp. 238-239.) And in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856] ( Cunningham ), the court held that California's then operative determinate sentencing law violated a criminal defendant's right to trial by jury by " allow[ing] a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." ( Cunningham, at p. 275.)
Although the high court has not specifically defined the word " penalty" as used in Apprendi (" any fact that increases the penalty for a crime beyond the prescribed statutory maximum" ( Apprendi, supra, 530 U.S. at p. 490, italics added)), Apprendi itself involved a court-made factual finding that directly increased the length of the prison sentence for the crime to which the defendant had pled guilty. Likewise, longer prison terms for the crimes of which the defendants had been convicted, based on facts found by the sentencing court, and ...