zipzipzip
Need to review, and move or delete:
2010-09-29: People-v-Mosley (Court of Appeals) (Excessive Punishment)
(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.)
2010-06-29: IN RE RODDEN (Court of Appeals) (Failure to Register - Out of State Conviction)
( In this habeas corpus proceeding, we address whether California's sex offender registration requirement may be imposed on the basis of facts gleaned from a probation report prepared after a guilty plea was entered in Kentucky state court.
Petitioner Connie Ann Rodden seeks to vacate her guilty plea to failure to register as a sex offender in California within five days of coming into, or changing residence within, a county. (Pen. Code, §§ 290, subd. (b), 290.005, subd. (a), 290.018, subd. (b).)[ 1 ] She argues that the least adjudicated elements of her Kentucky conviction do not satisfy those of any California offense for which sex offender registration is required.
After reviewing the petition, informal opposition, and reply, as well as the appellate record in petitioner's direct appeal,[ 2 ] we issued an order to show cause to be returned to this court. After considering the return and traverse, we shall issue the writ. As we shall explain, an out-of-state conviction requires a defendant to register as a sex offender in California only when the least adjudicated elements of the offense satisfy all of the elements of a crime enumerated in subdivision (c) of section 290 or when the foreign jurisdiction required the defendant to register as a sex offender. Here, the least adjudicated elements of the offense for which petitioner was convicted in Kentucky do not meet all of the requirements for any registerable offense in California.
Consequently, petitioner did not unlawfully fail to register as a sex offender, and her guilty plea to the same must be vacated. )
2010-03-23: Mendoza -v- ADP (District Court of Appeals) (ADP Use of Megans Law Data OK, 1st Amendment Right)
( The statute governing the “Megan‟s Law” website (MLW) includes a provision prohibiting the “use of any information that is disclosed [on the MLW] . . . for purposes relating to . . . [¶] [e]mployment,” and a provision that “[a]ny use” of information disclosed on the MLW for such a purpose “shall make the user liable for . . . actual damages, . . . and attorney‟s fees, exemplary damages, or a civil penalty not exceeding [$25,000].” (See Pen. Code, § 290.46, subd. (l)(2)(E), (4)(A).)
The anti-SLAPP statute provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person‟s right of . . . free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).)
The appeal before us today arises from a case in which the interests protected by the MLW statute meet face-to-face with the interests protected by the anti-SLAPP statute. The appeal presents us with two primary questions. First, does an employment-screening business have a constitutional free speech right –– as such rights are defined in the anti-SLAPP statute –– to republish information disclosed on the MLW to the business‟s clients, notwithstanding the statutory prohibitions on the use of such information? Second, in the event such a constitutional free speech right exists, did the trial court properly grant the business‟s anti-SLAPP motion to strike an MLW-based complaint for damages on the ground that plaintiff could not show as a matter of law a probability of prevailing?
We answer both questions, yes. The order dismissing plaintiff‟s MLW-based complaint under the anti-SLAPP statute is affirmed.
( Mendoza Did Not Demonstrate He Was Likely to Prevail)
SASS‟s anti-SLAPP motion argued that Mendoza could not prevail on his first cause of action for violation of Penal Code section 290.46 – as a matter of law – because SASS had not “used” information disclosed on the MLW. The trial court agreed and so do we.
The relevant portions of Penal Code section 290.46 provide:
“(l)(1) A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.
“(2) Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited:
“(A) Health insurance.
“(B) Insurance.
“(C) Loans.
“(D) Credit.
“(E) Employment.
“(F) Education, scholarships, or fellowships.
“(G) Housing or accommodations.
“(H) Benefits, privileges, or services provided by any business establishment.”
Mendoza first claims these statutory provisions should be read together to create two independent prerequisites which must be met for a lawful disclosure of MLW information. That is, to disseminate the MLW information it first must be done to protect a person at risk and, second, the information can never be used for any of the listed, prohibited purposes.
We disagree. We read these provisions as follows: Penal Code section 290.46, subdivision (l)(1) allows disclosure of information from the MLW at any time to protect a person at risk. Subdivision (l)(2) also allows disclosure of the MLW information, except for the listed purposes set forth – including prohibiting use for employment purposes. )
2010-03-15: People -v- Picklesimer (Supreme Court)(Removal of name from Registry)
( In People v. Hofsheier (2006) 37 Cal.4th 1185, 1207 (Hofsheier), we concluded imposition of mandatory lifetime sex offender registration on defendants convicted of violations of Penal Code section 288a, subdivision (b)(1)1 for voluntary oral copulation with a 16- or 17-year-old minor violated the state and federal equal protection clauses. Our decision resulted in the creation of a class of people, those convicted of violating section 288a, subdivision (b)(1) on or before the date of our decision, who potentially might be entitled to relief from mandatory lifetime registration but for whom the precise procedural method of asserting such a claim for relief was uncertain. We resolve that uncertainty here.
We conclude that for those like defendant Andrew Nelson Picklesimer, who are no longer in custody and whose appeals are final, claims for Hofsheier relief — relief from mandatory lifetime sex offender registration based on equal protection — must be brought by way of a petition for writ of mandate in the trial court. A freestanding postjudgment motion for Hofsheier relief, such as the one Picklesimer filed, is not cognizable, as the trial court and Court of Appeal correctly concluded.
A court may in its discretion treat such a postjudgment motion as a mislabeled petition for writ of mandate. In this case, however, for us to do so is not appropriate. This is because defendants who assert a claim for Hofsheier relief and establish a right to relief from mandatory sex offender registration may still be subject to discretionary registration under section 290.006, and the record before us does not conclusively establish that Picklesimer is exempt from discretionary registration and thus entitled to relief.
Accordingly, we affirm, without prejudice to Picklesimer‟s ability to file a petition for writ of mandate in the trial court seeking Hofsheier relief.
For the foregoing reasons, we affirm the judgment of the Court of Appeal, without prejudice to Picklesimer‟s opportunity to file an original petition for writ of mandate in the trial court seeking whatever relief he may be entitled to under People v. Hofsheier, supra, 37 Cal.4th 1185.)
2010-03-10: Williams -v- Superior Court of San Diego County (Court of Appeals)(Removal of name from registry)
( In this case we decide whether Joshua Williams, who pleaded guilty to carnal knowledge of a minor in violation of military law while serving in the Navy, is exempt from registration as a sex offender pursuant to Penal Code sections 290, subdivision (c) and 290.005 (undesignated statutory references are to the Penal Code), and therefore entitled to have his name removed from the Justice Department's sex offender registry. We conclude that based on Williams's plea, he was denied equal protection of the law in that persons convicted in California of the equivalent offense of unlawful sexual intercourse in violation of section 261.5 are not required to register. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1206-1207 (Hofsheier).) In reaching this conclusion, we focus on the offense of which Williams was convicted, not a hypothetical offense of which he could have been convicted based on the conduct underlying the charge. (People v. Ranscht (2009) 173 Cal.App.4th 1369, 1374-1375 (Ranscht).) Accordingly, the trial court erred in denying Williams's request to have his name removed from the registry.
Let a peremptory writ of mandate issue directing the trial court to (1) vacate the part of its April 21, 2008 order in which it denied Williams's request to remove his name from the sex offender registry and (2) notify the Department of Justice, Sex Offender Registry Unit, that his name be removed from the registry. )
Jessica's law was a 2006 voter approved law which effectively contained two controversial provisions: 1) A civil commitment provisions, and; 2) A residency provision. What has happened is this, sex offenders appealed the law and the appeal reached the California Supreme court. The court has rendered two decisions, each of which requires further hearings. They are:
2010-02-01: In re: E.J. et al. (Supreme Court) (Residency Law)
( 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); hereafter Proposition 83 or Jessica‟s Law). Proposition 83 was a wide-ranging initiative intended to “help Californians better protect themselves, their children, and their communities” (id., § 2, subd. (f)) from problems posed by sex offenders by “strengthen[ing] and improv[ing] the laws that punish and control sexual offenders” (id., § 31).
Among other revisions to the Penal Code,1 Proposition 83 amended section 3003.5, a statute setting forth restrictions on where certain sex offenders subject to the lifetime registration requirement of section 2902 may reside. New subdivision (b), added to section 3003.5, 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.” (§ 3003.5, subd. (b) (section 3003.5(b).) The new residency restrictions took effect on November 8, 2006, the effective date of Proposition 83.
Subsequent to Proposition 83‟s enactment, the California Department of Corrections and Rehabilitation (CDCR) sought to enforce section 3003.5(b) as a statutory parole condition by serving notice on registered sex offenders released on parole after November 8, 2006, including these petitioners, requiring them to comply with the mandatory residency restrictions or face revocation of parole and reincarceration.
The unified petition for writ of habeas corpus here before us was filed by four registered sex offender parolees subject to the new mandatory residency restrictions. In each case, the petitioner was convicted of a sex offense or offenses, for which lifetime registration was required pursuant to section 290, well before the passage of Proposition 83. In each case, the petitioner was released from custody on his current parole after November 8, 2006, the effective date of the new law.
At the threshold, petitioners contend that enforcement of section 3003.5(b)‟s residency restrictions as to them constitutes an impermissible retroactive application of the statute, in contravention of the general statutory presumption that Penal Code provisions operate prospectively (§ 3), because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83. In a closely related argument, petitioners contend that such retroactive enforcement of section 3003.5(b) further violates the ex post facto clauses of the United States and California Constitutions insofar as it “ „makes more burdensome the punishment for a crime, after its commission.‟ ” (Collins v. Youngblood (1990) 497 U.S. 37, 42.) Petitioners also contend section 3003.5(b) is an unreasonable, vague, and overbroad parole condition that infringes on various federal and state constitutional rights, including their privacy rights, property rights, right to intrastate travel, and substantive due process rights under the federal Constitution.
We issued orders to show cause with respect to each petitioner‟s claims, making them returnable before this court. We stayed enforcement of section 3003.5(b) as to these four named petitioners and consolidated their actions for purposes of briefing and oral argument in this court.
We have determined that petitioners‟ retroactivity and ex post facto claims, common to all four petitioners, can be addressed on the record currently before us. We conclude they lack merit and must be denied.
Petitioners‟ remaining claims — that section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on a number of their fundamental constitutional rights — present considerably more complex “as applied” challenges to the enforcement of the new residency restrictions in the respective jurisdictions to which each petitioner has been paroled. Petitioners are not all similarly situated with regard to their paroles. They have been paroled to different cities and counties within the state, and the extent of housing in compliance with section 3003.5(b) available to them during their terms of parole — a matter critical to deciding the merits of their “as applied” constitutional challenges — is not factually established on the declarations and materials appended to their petition and traverse. With regard to petitioners‟ remaining constitutional claims, evidentiary hearings will therefore have to be conducted to establish the relevant facts necessary to decide each claim.
The trial courts of the counties to which petitioners have been paroled are in the best position to conduct such hearings and find the relevant facts necessary to decide the remaining claims in their respective jurisdictions. These would include, but are 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 those particular jurisdictions; and a complete record of the protocol CDCR is currently following to enforce section 3003.5(b) in those jurisdictions consistent with its statutory obligation to “assist parolees in the transition between imprisonment and discharge.” (§§ 3000, subd. (a)(1), 3074.)
Accordingly, the petition for writ of habeas corpus and orders to show cause previously issued with regard to each petitioner‟s remaining claims shall be ordered transferred to the appropriate Courts of Appeal with directions that each matter be transferred to the trial court in the county to which the petitioner has been paroled, for further proceedings consistent with the views expressed herein. )
Need to review and move or delete:
2010-01-15: USA -v- Carta (Court of Appeals)
( The federal government sought to commit Todd Carta under the Adam Walsh Child Protection and Safety Act, Pub L. No. 109-248, 120 Stat. 587 (2006) ("Adam Walsh Act"). That statute authorizes civil commitment of a person already in federal custody, including one finishing a sentence after a criminal conviction, if the government shows that he is a "sexually dangerous person." 18 U.S.C. § 4248 (2006). The district court held that the government failed to make the necessary showing; the government now appeals, and Carta cross-appeals claiming that the statute is unconstitutional.
But a state, unlike Congress, has a general police power, whereas the federal government's interest and responsibility here stem from the fact that it already has custody of the prisoner. Volungus, 2010 WL 46968, at *6-7. There is no corresponding group of unimprisoned persons subject to its police power, so with respect to the operation of section 4248, federal prisoners and unimprisoned persons are not similarly situated. See Plyler v. Doe, 457 U.S. 202, 216 (1982). Thus, far from being irrational, it is inevitable that the federal government limits the reach of section 4248 to individuals already in its custody. We uphold the district court's determination that the statute is not facially unconstitutional, conclude that the district court erred in holding that the government failed to establish that Carta met the mental condition element and remand for it to consider whether the requisite dangerousness exists. It is so ordered. )
State Cases:
2009-08-18: Commonwealth -v- Cory (Supreme Court)(GPS Retro = Unconstitutional)
( BOTSFORD, J. General Laws c. 265, § 47, inserted by St. 2006, c. 308, § 8 (§ 47), requires any person who is "placed on probation" after conviction of a designated sex offense to wear a global positioning system (GPS) tracking device for the duration *560 of his or her probation. [FN1] In March, 2008, a judge in the Superior Court ruled that this statute applied to the defendant, and entered an order modifying the terms of the defendant's probationary sentence to require that he wear a GPS device during his probation. The defendant appealed, and we granted his application for direct appellate review.
We conclude that G. L. c. 265, § 47, by its terms applies to the defendant, because he was "placed on" postconviction probation following the statute's effective date of December 20, 2006. We further conclude, however, that G. L. c. 265, § 47, is punitive in effect, and under the ex post facto provisions of the United States and Massachusetts Constitutions, may not be applied to persons who are placed on probation for qualifying sex offenses committed before the statute's effective date. [FN2] Because the defendant committed and was convicted of his qualifying sex offense before § 47 was enacted, the statute may not be applied to him. We therefore vacate the order of the Superior Court judge and remand for further proceedings. [FN3] )
(See also: 2009-08-18: A split SJC says 2006 law violates rights of some sex offenders)
2009-05-07: Commonwealth -v- Raposo (Supreme Court) (GPS Retro = Violation)
( A judge in the District Court reported to the Appeals Court this case and in particular several questions concerning the constitutionality of G. L. c. 265, § 47, a statute that requires a person who is "placed on probation" for certain sex offenses to wear a global positioning system (GPS ) device as "a requirement of any term of probation." We transferred *740 the case on our own motion. We conclude that G. L. c. 265, § 47, does not apply to persons placed on probation prior to trial and prior to conviction or entry of a plea of guilty or admission to facts sufficient for a finding of guilt (admission to sufficient facts). [FN2] Because the defendant, with his consent, has been placed on pretrial probation under G. L. c. 276, § 87, without a guilty plea or admission to sufficient facts, it follows that G. L. c. 265, § 47, has no application to him. Accordingly, we decline to answer the constitutional questions reported. [FN3]
Conclusion. We hold that G. L. c. 265, § 47, does not apply to persons, such as the defendant in this case, who are placed on pretrial probation. We therefore do not reach the reported questions. The report is discharged and the case is remanded to the District Court for further proceedings consistent with this opinion.)
2009-06-05: John DOE, Sex Offender Registry Board No. 24341 vs. SEX OFFENDER REGISTRY BOARD (A civil Action)(Registration - Former Offender)
( In light of the above, we conclude that the hearing examiner must explicitly consider, and make written findings pertaining to, whether Doe currently presents a risk of reoffense or danger to the public. In this regard, we note that the Supreme Judicial Court has emphasized that retroactivity and due process concerns are implicated where registration is required solely based on the characteristics of an offense committed more than two decades earlier:
"There is no dispute that sex offenders are a serious threat in this Nation, and that the public interest in protecting vulnerable members of the community from sexual predators is a compelling one. But it is nearly impossible to conclude that this interest and the statute's defined purposes are served by imposing, without any opportunity for classification on an individualized basis, a registration requirement on a person who committed a single sexual offense more than twenty-four years before the board's imposition of the requirement, and whose demonstrable record since that time contains no evidence whatsoever of predatory sexual acts characterized by repetitive and compulsive behavior."
Doe No. 8725, supra at 790 (quotations and citations omitted).
In order to avoid retroactivity concerns, registration can be required only based on an assessment "of the person's current level of dangerousness and risk of reoffense" (emphasis added). Id. at 787. Thus on remand, if the hearing examiner again concludes that SORB has met its burden of showing that Doe presents a "low" risk of reoffense or a "low" risk of danger to the public such that he must register, the facts upon which that assessment is based should be specifically found, particularly identifying any facts that postdate Doe's offense, as well as the evaluative process used to balance the characteristics of Doe's offense against Doe's life for the past twenty-five years. See Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 253 (1966) (in determining whether substantial evidence supports a particular finding, a court should evaluate the evidence that detracts from the finding as well as that which supports it). SORB's burden is to show that Doe presents a "cognizable risk of reoffense," Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 762 (2006), not merely a hypothetical or speculative potential risk. The term "low" must be given a reasonable interpretation; it should not be taken to mean "anything more than no."
In addition, the explanation of this evaluative process should also include the basis upon which the hearing examiner concludes (if she does so) that any predictive value can be placed on Doe's twenty-five year old offense, and to the extent that the offense has any predictive value, how that value is to be balanced and weighed against the totality of the other circumstances. These include, for example, the role alcohol may have played in the offense (and Doe's subsequent abstinence); the fact that Doe has no previous or subsequent history of sex offenses; his medical, vocational, and living situation; and any other factors that would bear on the predictive value of Doe's twenty-five year old crime. The hearing officer may find it helpful to receive expert testimony on these issues.
For these reasons, we vacate the judgment of the Superior Court dismissing Doe's complaint, and remand the matter to the SORB for further proceedings consistent with this opinion.)
2008-03-14: Doe -v- Sex Offender Registration Board (Supreme Court)(Registration - Former Offender)
( Conclusion. When considering the retroactive application of civil statutes, we balance "opposing considerations." Leibovich v. Antonellis, supra at 577, quoting American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 189-190. Here, the requirements the registration law would impose on Doe are extensive and permanent. Moreover, if Doe can establish that he poses neither a risk of reoffense nor a danger to the communities the law was intended to protect, the imposition of the registration law's requirements on him would not further the law's substantial and important purposes. Consequently, the retroactive imposition of the registration requirement without an opportunity to overcome the conclusive presumption of dangerousness that flows solely from Doe's conviction, violates his right to due process under the Massachusetts Constitution.
Doe must be granted the hearing he has requested, in accordance with the procedure set forth in G. L. c. 6, § 178L, where he will have the opportunity to demonstrate that he neither poses a risk of reoffense nor is a current danger to vulnerable members of our communities. The Superior Court decision is vacated. The case is remanded to the board for an evidentiary hearing. So ordered. )
No comments:
Post a Comment
We use the Disqus Commenting system, please wait for it to load. Also, comments are moderated, please stick to the issue of the post, as we are trying to have an intelligent, relevant discussion which develops the post. Comments deviating from topic of post will not be posted. Thanks