In re E.J.


47 Cal. 4th 1258, 223 P.3d 31, 104 Cal. Rptr. 3d 165

Filed 2/1/10



IN THE SUPREME COURT OF CALIFORNIA



In re E.J. on Habeas Corpus.

S156933

In re S.P. on Habeas Corpus.

S157631

In re J.S. on Habeas Corpus.

S157633

In re K.T. on Habeas Corpus.

S157634



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


1

All further undesignated statutory references are to the Penal Code.

2

Section 290 imposes upon individuals convicted of certain sex offenses a lifetime

requirement that they register with law enforcement in the communities in which they
reside.

1


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

2


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

3


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.

I. STATEMENT OF THE CASE

A. Proposition 83 and CDCR?s enforcement of section 3003.5(b)

Proposition 83 was submitted to the voters on the November 7, 2006 ballot. The

purpose of the initiative was described in section 2, which explains that ?[s]ex offenders

have a dramatically higher recidivism rate for their crimes than any other type of violent

felon,? that they ?prey on the most innocent members of our society,? and that ?[m]ore

than two-thirds of the victims of rape and sexual assault are under the age of 18.? (Prop.

83, ? 2, subd. (b).) Section 2 further declares that ?Californians have a right to know

about the presence of sex offenders in their communities, near their schools, and around

their children? (id., subd. (g)), and that ?California must also take additional steps to

monitor sex offenders, to protect the public from them, and to provide adequate penalties

for and safeguards against sex offenders, particularly those who prey on children.? (Id.,

subd. (h).) Section 2 also states, ?It is the intent of the People in enacting this measure to

4


help Californians better protect themselves, their children, and their communities; it is not

the intent of the People to embarrass or harass persons convicted of sex offenses.? (Id.,

subd. (f).)

As explained in the official ballot pamphlet, Proposition 83 sought to achieve its

proponents? goal of creating ?predator free zones around schools and parks to prevent sex

offenders from living near where our children learn and play? through the enactment of

mandatory residency restrictions in the form of an amendment to section 3003.5, a statute

setting forth restrictions on where certain sex offenders subject to the lifetime registration

requirement of section 290 may reside. (Voter Information Guide, Gen. Elec. (Nov. 7,

2006) argument in favor of Prop. 83, p. 46 (Voter Information Guide).) As noted, the

initiative added new subdivision (b) to section 3003.5, making it ?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(b), added by Prop. 83, ? 21.)

On August 17, 2007, the Division of Adult Parole Operations (DAPO) of CDCR

issued Policy No. 07-36, pertaining to the enforcement of section 3003.5(b) upon

parolees. (CDCR, Policy No. 07-36: Implementation of Proposition 83, aka Jessica?s

Law (Aug. 17, 2007) (Policy No. 07-36).) Under that policy, section 2616 of title 15 of

the California Code of Regulations, setting forth grounds for revocation of parole, was

revised to add ?[v]iolation of the residency restrictions set forth in Penal Code Section

3003.5 for parolees required to register as provided in Penal Code Section 290,? as a

reportable ground for revocation of parole. (Policy No. 07-36, supra, p. 1; see Cal. Code

Regs., tit. 15, ? 2616, subd. (a)(15).) The revised policy was applicable to ?all parolees

required to register as sex offenders pursuant to PC Section 290, released from custody

on or after November 8, 2006,? including the following parolee categories: ?Initial

[r]eleases,? ?Parole [v]iolators [w]ith a [n]ew [t]erm,? ?Parolees released after having

5


served a period of revocation,? and ?Parolees released from any other jurisdiction?s

custody . . . .?3 (Policy No. 07-36, at p. 1.)

Parole units were provided with two lists of registered sex offenders released on

parole after November 8, 2006: those who were in compliance, and those who appeared

to be out of compliance with the residency restrictions of section 3003.5(b). (Policy No.

07-36, supra, at p. 2.) Each parolee whose residence appeared to be out of compliance

was to be served with a ?Modified Condition of Parole Addendum? giving him 45 days

within which to come into compliance with the residency restrictions or be subject to

arrest and reincarceration for violating his parole. (Id., at pp. 5, 9.)

B. Petitioners

Petitioners are four registered sex offender parolees subject to the new mandatory

parole residency restrictions. 4 As noted, 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 prison on his current parole (after serving his latest term in prison custody for a

nonsex offense) after November 8, 2006, the effective date of section 3003.5(b). Each

petitioner was thereafter served with a 45-day letter imposing the residency restrictions as

an additional statutory condition of parole.

3

On October 11, 2007, the CDCR issued a revised policy for the implementation of

section 3003.5(b), requiring noncompliant parolees to either ?immediately provide a
compliant residence or declare themselves transient.? (CDCR, Policy No. 07-48: Revised
Procedures for Jessica?s Law Notice to Comply (Oct. 11, 2007) [amending Policy No.
07-36].)

4

Petitioners requested that we permit their supporting declarations to be filed under

seal and to otherwise not disclose their identities given the particular subject matter of
these proceedings. In a departure from our usual practice (see Cal. Style Manual (4th ed.
2000) ? 5:9, pp. 179-180), we granted their request. Upon transfer of the petition and
orders to show cause previously issued on all remaining claims to the lower courts, those
courts are free to reevaluate the necessity of conducting further proceedings under seal
and not disclosing the identities of petitioners.

6


1. E.J.

Petitioner E.J. was convicted of forcible rape (? 261, subd. (2)) and robbery of an

inhabited dwelling (former ? 213.5, subd. (2)) in 1985 when he was 16 years old. The

forcible rape conviction subjected him to the lifelong registration requirement of section

290. He served four years nine months in the California Youth Authority and was

released in October 1989. In 1993, he was convicted of willful cruelty to a child (? 273a,

subd. (b)) and second degree robbery (? 212.5). He served two years in prison for those

offenses. In 2000, he was convicted of battery (? 242) and possession of drug

paraphernalia (Health & Saf. Code, ? 11364). In 2004 he was convicted of failing to

register under section 290, sentenced to prison, and paroled once again in August 2005.

Thereafter, he suffered numerous additional parole violations and was returned to prison

on three separate occasions. He was last released from prison custody on parole in

February 2007, after the effective date of section 3003.5(b).

According to his declaration, in September 2007, E.J. lived with his wife and their

children in an apartment in San Francisco. He was informed by his parole agent that his

residence was not compliant with section 3003.5(b) and that he would have to locate

compliant housing by October 2, 2007, or face revocation of parole. Thereafter, because

the original notice was defective, he was given an additional 10 days to comply. E.J.

claims his parole agent initially told him there was no compliant housing in San

Francisco, but subsequently told him there is a ?small area near AT&T Park that is not

within 2,000 feet of a school or park.? He declares, ?I cannot afford to live near AT&T

Park, as it is one of the most expensive areas in San Francisco. In addition, I do not

believe that I would be able to establish a secure residence near AT&T Park because I

believe that some law enforcement officials would consider it a park where children

regularly gather.? At the time he prepared his declaration, E.J. was unable to move into

compliant housing and was preparing to declare himself homeless.

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2. S.P.

In 1998, petitioner S.P., then a minor, was tried as an adult and convicted by guilty

plea of rape where the victim (a 15-year-old girl) was prevented from resisting by reason

of an intoxicating or controlled substance. (? 261, subd. (a)(3).) He served three years

eight months in prison and was released from custody on parole in August 2001. The

rape conviction subjected S.P. to lifetime registration under section 290. In 2002, he was

convicted of knowingly receiving or concealing stolen property (? 496, subd. (a)), served

an additional four years eight months in prison, and was paroled in August 2006. In early

March 2007, S.P. was taken into custody and charged with a parole violation for driving

the wrong way down a one-way street while in possession of an open container of

alcohol. He pled no contest and was released from custody on parole to Santa Clara

County on March 22, 2007, after the effective date of section 3003.5(b).

According to his declaration, in August 2007 S.P. was informed by his parole

agent that he was in violation of the residency restrictions because the apartment where

he lived with his mother was within 2,000 feet of a daycare facility. He was told that if

he did not move by October 11, 2007, he would face parole revocation and return to

prison. He asserts his parole agent told him that ?it was my responsibility to find

compliant housing and that he could not provide me with any assistance.? He asked to

transfer his parole out of Santa Clara County but was told by his parole agent that the

process would take at least 60 days, by which time he would be in violation of the

residency restrictions. At the time he filed his habeas corpus petition, S.P. and his mother

had been unable to locate compliant housing in Santa Clara County.

3. J.S.

In 1985, petitioner J.S. was convicted of indecent exposure in Texas pursuant to

Texas Penal Code section 21.08, subdivision (a), which provides, ?A person commits an

offense if he exposes his anus or any part of his genitals with intent to arouse or gratify

8


the sexual desire of any person, and he is reckless about whether another is present who

will be offended or alarmed by his act.? As a result of his conviction, he has been subject

to the lifetime registration requirement of section 290 while residing in California. (See

Pen. Code, ?? 290, subd. (c), 290.005, subd. (a).)

After coming to California, J.S. was convicted in 1990 of exhibiting or using a

deadly weapon (? 417, subd. (a)(1)); in 1991 of voluntary manslaughter (? 192, subd.

(a)); in 1999 and 2000 of battery against a current or former spouse, fianc?e or cohabitant

(? 243, subd. (e)(1)); and in 2000 of willful infliction of corporal injury on a spouse or

roommate (? 273.5, subd. (a)). Following this last conviction and prison term, J.S. was

released on parole to San Diego County in March 2006. In February 2007, his parole was

revoked for failure to register. He was returned to prison and again released on parole in

May 2007, after the effective date of section 3003.5(b).

According to his declaration, in August 2007 J.S. was informed by his parole

agent that he would have to move from his San Diego County residence because it was

within 2,000 feet of an elementary school and a park. J.S. asked if he could move to

another state; his parole agent initially agreed to help him but thereafter told him the

process to transfer his parole out of state could not be completed before he was required

to find housing in compliance with section 3003.5(b), and that if he could not do so he

would have to declare himself homeless or face parole revocation and return to prison.

He thereafter lost his state funding to pay the rent for his noncompliant housing, could

not locate compliant housing, and declared himself homeless in late September 2007.

4. K.T.

In 1990, petitioner K.T. was convicted of forcible rape (? 261, subd. (2)) and

forcible oral copulation (? 288a, subd. (c)(2)), for which he served a five-year prison

term, and which convictions subjected him to the registration requirement of section 290.

In 2001, he was convicted of felony grand theft (? 487), returned to prison, and thereafter

9


released on parole in January 2006. In June 2007, his parole was revoked based on his

failure to register under section 290. Following his return to prison for the parole

revocation, he was again released on parole to San Diego County in August 2007, after

the effective date of section 3003.5(b).

According to his declaration, in August 2007, K.T. was served with formal notice

that his residence was not in compliance with section 3003.5(b) because it was within

2,000 feet of an elementary school. At the time K.T. was living with his disabled wife,

for whom he provided care, in a house owned by them. At the time he submitted his

declaration, K.T. was attempting to find compliant housing. He further indicates he filed

an emergency grievance request with CDCR that was denied, with his appeal currently

pending.

C. The petition for writ of habeas corpus

On October 4, 2007, E.J., S.P., J.S., and K.T. filed a unified petition for writ of

habeas corpus seeking to temporarily and permanently enjoin CDCR from enforcing

section 3003.5(b) against them as a statutory condition of their paroles. Petitioners

advance a number of challenges to the statute. At the threshold, they contend that

enforcement of section 3003.5(b) 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

Constitution (art. I, ? 10) and the California Constitution (art. I, ? 9) because it ? ?makes

more burdensome the punishment for a crime, after its commission.? ? (Collins v.

Youngblood, supra, 497 U.S. at p. 42.) Petitioners also contend section 3003.5(b) is an

unreasonable, vague, and overbroad parole condition that infringes on various state and

10


federal constitutional rights, including their privacy rights, property rights, right to

intrastate travel, and their substantive due process rights under the federal Constitution.

On October 10, 2007, we issued an order staying enforcement of section 3003.5(b)

as to these four petitioners. On December 12, 2007, we issued orders to show cause with

respect to each petitioner, returnable in this court.

II. ANALYSIS

A. Section 3003.5(b) enforced as a mandatory parole condition

Section 3003.5(b) makes it ?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(b).) In the official ballot

pamphlet, the proponents of the initiative measure told the voters the intent behind

section 3003.5(b) was 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, supra, argument in favor of Prop. 83, at p. 46.) The Legislative Analyst told the

voters that a violation of the new provision would constitute a parole violation for

registered sex offenders on parole as well as a misdemeanor offense. (Id., analysis of

Prop. 83 by Legis. Analyst, at p. 44.)

Each petitioner before us is a paroled registered sex offender who specifically

challenges CDCR?s attempts to enforce the new statutory residency restrictions against

him as a ground for revocation of his parole. Section 3003.5 of the Penal Code is found

in part 3, title 1, chapter 8 (entitled ?Length of Term of Imprisonment and Paroles?) and,

as the section?s language reflects, its provisions are obviously intended to apply to

?persons released on parole.? (? 3003.5, subd. (a), italics added.)5


5

The further question whether section 3003.5(b) also created a separate new

misdemeanor offense applicable to all sex offenders subject to the registration
requirement of section 290, irrespective of their parole status, is not before us, as there is
no allegation or evidence that these petitioners, or any other registered sex offenders,

11


For purposes of these habeas corpus proceedings initiated by paroled registered

sex offenders against CDCR, we therefore view petitioners as a necessarily included

subgroup within the statutory phrase ?any person[s] for whom registration is required

pursuant to Section 290? (? 3003.5(b)), namely, those persons for whom registration is

required pursuant to Section 290, who were released on parole after November 8, 2006,

the effective date of Proposition 83.

B. Retroactivity

Petitioners first claim section 3003.5(b)?s residency restrictions are being

impermissibly applied retroactively to them. Specifically, petitioners argue that because

they committed the underlying sex offenses that gave rise to the requirement that they

register for life pursuant to section 290 well before the voters enacted section 3003.5(b),

the new law retroactively attaches new legal consequences to their prior convictions.

Insofar as Jessica?s Law fails to explicitly state that any of its provisions are retroactive,

petitioners contend that application of the new residency restrictions to them contravenes

section 3 of the Penal Code, which provides, as a general matter, that ?No part of [the

Penal Code] is retroactive, unless expressly so declared.? (? 3.)

?[S]ection 3 reflects the common understanding that legislative provisions are

presumed to operate prospectively, and that they should be so interpreted ?unless express

language or clear and unavoidable implication negatives the presumption.? [Citation.]?

(Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.) ?[I]n the absence of an

express retroactivity provision, a statute will not be applied retroactively unless it is very

clear from extrinsic sources that the Legislature or the voters must have intended a

retroactive application.? (Id. at p. 1209.)


whether on parole or otherwise, have ever been separately charged with such an offense
under the new provision.

12


We conclude section 3 is not violated here. Each of these four petitioners was

released from custody on his current parole and took up residency in noncompliant

housing after section 3003.5(b)?s effective date. Under settled principles of law for

determining whether a Penal Code provision is being applied prospectively or

retroactively, it is clear that the new residency restrictions here in issue are being

prospectively applied to petitioners.

Under its plain language, subdivision (b) applies to ?any person for whom

registration is required pursuant to Section 290.? (? 3003.5(b).) A convicted sex

offender who becomes subject to the registration requirement of section 290 must register

?for the rest of his or her life while residing in California, or while attending school or

working in California. . . .? (? 290, subd. (b).) Accordingly, under the plain language of

section 3003.5(b), any convicted sex offender already subject to the lifetime registration

requirement who is released from custody on parole, whether it be after serving a term in

custody for an initial sex offense conviction, a new sex offense conviction, or a new

nonsex offense conviction, becomes subject to the new mandatory residency restrictions

for the duration of his parole term. Should he take up residency in noncompliant housing

after his release from custody, he will then be subject to parole revocation for a violation

of section 3003.5(b). It matters not, under a straightforward application of the language

of the statute, whether the registered sex offender is being released on his current parole

for a sex or nonsex offense. Since he is already subject to the lifetime registration

requirement of section 290, that status, together with his act of moving into noncompliant

housing upon his release from custody on parole after the effective date of

Proposition 83, subjects him to the residency restrictions of section 3003.5(b). In

contrast, under the dissent?s interpretation of section 3003.5(b), all of the many thousands

of registered sex offenders who achieved that status prior to November 8, 2006, the

13


effective date of Proposition 83, will enjoy a free lifetime pass from section 3003.5(b)?s

residency restrictions, irrespective of their parole status.

Each of the four petitioners before us was convicted of one or more sex offenses

requiring that he register for life (? 290, subd. (b)) years before Jessica?s Law was passed.

However, each petitioner was not released from custody on his current parole until after the

statute?s effective date, and each thereafter took up residency in noncompliant housing,

making him subject to a reportable parole violation under CDCR?s Policy No. 07-36. CDCR

takes the position that the statutory presumption against retroactivity of Penal Code

provisions (? 3) is not implicated where, as here, the new residency restrictions are being

applied only to registered sex offenders who were released from prison custody on parole

and who secured noncompliant housing after the statute?s effective date. The relevant case

law supports CDCR?s position.

The applicable test for determining whether a statute is being applied

prospectively or retroactively was explained in People v. Grant (1999) 20 Cal.4th 150

(Grant). In that case we considered whether conviction of the crime of ?continuous

sexual abuse of a child? (? 288.5, subd. (a)) for a course of conduct that included acts of

child molestation committed both before and after section 288.5?s effective date was a

retroactive application of the statute. We first observed: ?As the United States Supreme

Court has recognized, ?deciding when a statute operates ?retroactively? is not always a

simple or mechanical task? (Landgraf v. USI Film Products (1994) 511 U.S. 244, 268)

and ?comes at the end of a process of judgment concerning the nature and extent of the

change in the law and the degree of connection between the operation of the new rule and

a relevant past event? (id. at p. 270). In exercising this judgment, ?familiar considerations

of fair notice, reasonable reliance, and settled expectations offer sound guidance.?

(Ibid.)? (Grant, at p. 157.)

14


We went on to explain, ?In general, application of a law is retroactive only if it

attaches new legal consequences to, or increases a party?s liability for, an event, transaction,

or conduct that was completed before the law?s effective date. (Landgraf v. USI Film

Products, supra, 511 U.S. 244, 269-270 & fn. 23; see also Rodriguez v. General Motors

Corp. (9th Cir. 1994) 27 F.3d 396, 398; Tapia v. Superior Court (1991) 53 Cal.3d 282, 291;

Kizer v. Hanna (1989) 48 Cal.3d 1, 7; People v. Weidert (1985) 39 Cal.3d 836, 851.) Thus,

the critical question for determining retroactivity usually is whether the last act or event

necessary to trigger application of the statute occurred before or after the statute?s effective

date. (Travenol Laboratories, Inc. v. U.S. (Fed. Cir. 1997) 118 F.3d 749, 752; McAndrews v.

Fleet Bank of Massachusetts, N.A. (1st Cir. 1993) 989 F.2d 13, 16.) A law is not retroactive

?merely because some of the facts or conditions upon which its application depends came

into existence prior to its enactment.? (Kizer v. Hanna, supra, 48 Cal.3d at p. 7.)? (Grant,

supra, 20 Cal.4th at p. 157.)

We concluded in Grant, ?Here, defendant was convicted of continuous sexual abuse,

as defined in section 288.5, after the court instructed the jury to return a verdict of guilty

only if it found that one of the required minimum of three acts of molestation occurred after

section 288.5?s effective date. In other words, defendant could be convicted only if the

course of conduct constituting the offense of continuous sexual abuse was completed after

the new law became effective. Because the last act necessary to trigger application of

section 288.5 was an act of molestation that defendant committed after 288.5?s effective

date, defendant?s conviction was not a retroactive application of section 288.5 and therefore

not a violation of the statutory prohibition against retroactive application of the Penal Code.?

(Grant, supra, 20 Cal.4th at pp. 157-158.)

Section 3003.5(b) places restrictions on where a paroled sex offender subject to

lifetime registration pursuant to section 290 may reside while on parole. For purposes of

retroactivity analysis, the pivotal ?last act or event? (Grant, supra, 20 Cal.4th at p. 157)

15


that must occur before the mandatory residency restrictions come into play is the

registered sex offender?s securing of a residence upon his release from custody on parole.

If that ?last act or event? occurred subsequent to the effective date of section 3003.5(b), a

conclusion that it was a violation of the registrant?s parole does not constitute a

?retroactive? application of the statute.

The facts and holding in Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275

(Bourquez) are particularly instructive here, as they involve the question whether another

provision of Jessica?s Law enacted by Proposition 83 was being applied prospectively or

retroactively.

At issue in Bourquez was that portion of Jessica?s Law approved by the voters at

the November 7, 2006, election that extended the commitment terms of persons

determined to be sexually violent predators under the Sexually Violent Predator Act

(SVPA) (Welf. & Inst. Code, ? 6600 et seq.) from two years to an indeterminate term.

The petitioner in Bourquez claimed that to apply the new indeterminate term for sexually

violent predators to individuals like himself who had pending recommitment petitions at

the time Proposition 83 was enacted would be an impermissible retroactive application of

the new statute. The Bourquez court explained, ?Proposition 83 is entirely silent on the

question of retroactivity, so we presume it is intended to operate only prospectively. The

question is whether applying its provisions to pending petitions to extend commitment is

a prospective application.? (Bourquez, supra, 156 Cal.App.4th at p. 1288, italics added.)

The Bourquez court went on to explain that, ?[b]ecause a proceeding to extend

commitment under the SVPA focuses on a person?s current mental state, applying the

indeterminate term of commitment of Proposition 83 does not attach new legal

consequences to conduct that was completed before the effective date of the law.

[Citation.] Applying Proposition 83 to pending petitions to extend commitment under the

16


SVPA to make any future extended commitment for an indeterminate term is not a

retroactive application.? (Bourquez, supra, 156 Cal.App.4th at p. 1289.)

Significantly, the Bourquez court did not find the fact of, or dates of, the sex

offense convictions that first qualified the defendant as a sexually violent predator to be

controlling on his retroactivity claim. Rather, since the relevant provision of Jessica?s

Law pertained to a sexually violent predator?s current mental state, the court concluded

that to apply the new law to a defendant already under a fixed-term commitment as a

sexually violent predator was a prospective, and not an impermissible retrospective,

application of the statute.

By parity of reasoning, the provisions of Jessica?s Law here under scrutiny ?

section 3003.5(b)?s statutory residency restrictions ? are not implicated until a convicted

and registered sex offender is released from custody and must take up residency in the

community to which he has been paroled. Applying the mandatory residency restrictions

to these four petitioners, who were released from prison on parole after the effective date

of Jessica?s Law, and who thus had ample notice of the necessity of securing housing in

compliance with the restrictions at the time they moved into noncompliant housing, is

simply not a retroactive application of the new law. (Bourquez, supra, 156 Cal.App.4th

at p. 1289.)6


6

To be contrasted with the holding in Bourquez is the holding in People v. Whaley

(2008) 160 Cal.App.4th 779. As in Bourquez, the provision at issue in Whaley was that
part of Jessica?s Law that extended the commitment terms of sexually violent predators
under the SVPA from two years to an indeterminate term. (Whaley, at pp. 785-786.)
Unlike Bourquez, however, which involved a recommitment petition already pending at
the time Jessica?s Law was passed, in Whaley the People simply petitioned the court to
summarily convert the defendant?s preexisting two-year fixed-term commitment as a
sexually violent predator into an indeterminate term under the new law after the provision
had passed.

17


It may be that if a registered sex offender was released from custody on his

current parole term prior to November 8, 2006, and secured noncompliant housing prior

to that date, in which he currently resides, application of the residency restrictions to him

would constitute an impermissible retrospective application of the statute. Under those

circumstances, he would not have had notice of the new 2,000-foot ?predator free zone?

restrictions prior to his release from custody on parole and the securing of his current

residence, the conduct to which section 3003.5(b) speaks. (See Doe v. Schwarzenegger

(E.D.Cal. 2007) 476 F.Supp.2d 1178, 1179, fn. 1 [holding that ? 3003.5(b) could not be

applied retroactively to persons convicted of registrable offenses prior to the effective

date of the statute ?and who were paroled, given probation, or released from incarceration

prior to that date?].) However, all four petitioners here were released from custody on

their current parole terms, and then secured their noncompliant housing, after the

effective date of Jessica?s Law. By doing so, they violated a law already in effect, and

application of that law to those violations is not ?retroactive.?

Contrary to petitioners? argument, the fact that they were all convicted of sex

offenses giving rise to their status as lifetime registrants pursuant to section 290 well

prior to the passage of Jessica?s Law does not, in itself, establish that the new parole

residency restrictions are now being applied retroactively to them. The decision in

People v. Mills (1992) 6 Cal.App.4th 1278 (Mills) succinctly explains the point in an

analogous context.

The defendant in Mills was convicted in 1981 of felony possession of marijuana

for sale. At that time, section 12021, subdivision (a) provided, ?Any person who has

been convicted of a felony under the laws of . . . California . . . who owns or has in his

possession or under his custody or control any pistol, revolver, or other firearm capable

of being concealed upon the person is guilty of a public offense . . . .? (Italics added.)

Subsequently, section 12021, subdivision (a) was amended, effective January 1, 1990, to

18


provide, ?Any person who has been convicted of a felony under the laws of . . .

California . . . who owns or has in his or her possession or under his or her custody or

control any firearm is guilty of a felony.? (Stats. 1989, ch. 1044, ? 3, italics added.)

After the effective date of the amendment, defendant brought a shotgun into a sporting

goods store to have it repaired. His status as an ex-felon was discovered and he was

arrested, charged, and convicted of being a felon in possession of a firearm in violation of

amended section 12021, subdivision (a). The defendant appealed, contending the 1990

amendment to section 12021, subdivision (a) was an unconstitutional ex post facto law

being applied to him. (Mills, supra, 6 Cal.App.4th at pp. 1281-1282.)

The Mills court first explained that the question whether a new law is being

applied retrospectively is closely intertwined with the question whether it is an

unconstitutional ex post facto law, because a finding that the law is being applied

retrospectively is a threshold requirement for finding it impermissibly ex post facto. For

this principle Mills cited the high court?s decision in Weaver v. Graham (1981) 450 U.S.

24, which explained that ? ?two critical elements must be present for a criminal or penal

law to be ex post facto: it must be retrospective, that is, it must apply to events occurring

before its enactment, and it must disadvantage the offender affected by it.? ? (Mills,

supra, 6 Cal.App.4th at pp. 1282-1283, quoting Weaver v. Graham, supra, 450 U.S. at

pp. 28-29.) Generally, where a new law ?retroactively increase[s] the punishment for [a]

crime, it [is] retrospective for purposes of the ex post facto test.? (Mills, supra,

6 Cal.App.4th at p. 1285.) ?The clearest example of [an ex post facto] law is one which

defines a new crime and applies its definition retroactively to [punish] conduct which was

not criminal at the time it occurred.? (Id. at p. 1282.)

The Mills court concluded the defendant?s conviction as a felon in possession of a

firearm under the amended version of section 12021, subdivision (a) ? which broadened

the definition of the crime from possession of a concealable firearm to possession of any

19


firearm ? was neither a retroactive application of the new law nor conviction of an ex

post facto law. The court explained, ?Here defendant was convicted of conduct, his

possession of a shotgun, occurring after the effective date of the statute. His conduct was

a violation of the new statute, rather than an increase of punishment for the earlier offense

of possessing marijuana for sale. Although the statute only applied to him because of his

status as a person convicted of a felony, and the felony conviction occurred before the

statute became effective, the fact of his prior conviction only places him into a status

which makes the new law applicable to him. The legal consequences of his past conduct

were not changed ? only a new law was applied to his future conduct.? (Mills, supra,

6 Cal.App.4th at p. 1286, fn. omitted.)

The Mills court emphasized that ?defendant knew, or should have known, that it

was a crime for him to possess a shotgun after January 1, 1990. He had fair warning of

the new law, and he did possess a shotgun after that date. [Citation.] His conviction for

doing so was not retrospective. Although the new law applied to him because he had the

status of a felony offender, he was not additionally punished for possessing marijuana for

sale but rather was punished for committing a new crime, possession of a firearm by a

felon, after the amendment to the statute became effective. [Citation.]? (Mills, supra, 6

Cal.App.4th at p. 1289.)

Here, given that petitioners were released on their current parole terms after the

effective date of Jessica?s Law, petitioners knew, or should have known, that they would

be subject to a reportable parole violation if they moved into housing that did not comply

with the newly enacted residency restrictions that took effect prior to their release. They

are thus presumed to have had fair notice of the new restrictions applicable to them prior

to their release on parole and their securing of noncompliant housing. To require

petitioners to comply with the new residency restrictions or face a parole violation for

failing to do so is thus not a retrospective application of the law. Although they fall

20


under the new restrictions by virtue of their status as registered sex offenders who have

been released on parole, they are not being ?additionally punished? for commission of the

original sex offenses that gave rise to that status. Rather, petitioners are being subjected

to new restrictions on where they may reside while on their current parole ? restrictions

clearly intended to operate and protect the public in the present, not to serve as additional

punishment for past crimes.

The dissent argues that, by finding section 3003.5(b) applies prospectively to

lifetime sex registrants who were released on parole and moved to noncompliant housing

after the effective date of Proposition 83, we contravene Strauss v. Horton (2009)

46 Cal.4th 364 (Strauss), where we concluded that Proposition 8?s state constitutional

ban on same-sex marriage cannot be applied retroactively to same-sex couples who

married prior to the initiative?s effective date. The dissent is wrong. As we explained in

Strauss, the affected same-sex couples took affirmative steps in reliance on this court?s

holding in In re Marriage Cases (2008) 43 Cal.4th 757 that the California Constitution

included a right to same-sex marriage. Thus, we observed, ?[w]ere Proposition 8 to be

applied to invalidate or to deny recognition to marriages performed prior to November 5,

2008 [the date Prop. 8 became effective], rendering such marriages ineffective in the

future, such action would take away or impair vested rights acquired under the prior

state of the law and would constitute a retroactive application of the measure.? (Strauss,

supra, at p. 472, italics added.) In other words, unless the voters clearly provided

otherwise, Proposition 8 could alter the future right to marry, but it could not negate or

undo permanent legal relationships that were allowed ? indeed protected ? by the

Constitution at the time they were entered into.

Petitioners here took no affirmative action, prior to the effective date of

Proposition 83, in reliance on an earlier state of the law that gave them a ?vested right?

against future statutory restrictions concerning where they might thereafter establish

21


residency. Nor does Proposition 83 purport to undo any vested rights. As applied to

these petitioners, Proposition 83 operates only on actions they took, with fair notice of the

new residency restrictions, after the initiative?s effective date. That Proposition 83?s

restrictions on where parolees released after its effective date may thereafter live derives

from their prior status as lifetime sex-offender registrants does not mean the measure is

being applied retroactively to them. The dissent?s attempt to invoke Strauss is thus

unpersuasive.

We therefore conclude petitioners? retroactivity claim must be rejected. Enforcing

section 3003.5(b)?s residency restrictions against them is a prospective, not a

retrospective, application of that law.7



C. Ex post facto

Petitioners next make the closely related argument that section 3003.5(b) is an

unconstitutional ex post facto law if retroactively applied to them. The claim is

unavailing given our conclusion that the law is not being applied retroactively to these

petitioners.

Both the United States Constitution (art. I, ?? 9 and 10) and the California

Constitution (art. I, ? 9) prohibit the passage of ex post facto laws. In Collins v.

Youngblood, supra, 497 U.S. 37, the high court explained that an impermissible ex post

facto law is one which ?makes more burdensome the punishment for a crime, after its

commission.? (Id. at p. 42.) ?Through this prohibition, the Framers sought to assure that

legislative Acts give fair warning of their effect and permit individuals to rely on their

meaning until explicitly changed. [Citations.] The ban also restricts governmental power

7

CDCR also takes the position that if section 3003.5(b) is being applied

retroactively to these petitioners, then the language of the initiative measure itself, as well
as statements in the ballot pamphlet submitted to the voters, reflect that the new parole
residency restrictions were plainly intended to have such retroactive effect. We need not
and do not address the contention given our conclusion that section 3003.5(b) is only
being applied prospectively to these petitioners.

22


by restraining arbitrary and potentially vindictive legislation. [Citations.] [?] In accord

with these purposes, our decisions prescribe that two critical elements must be present for

a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply

to events occurring before its enactment, and it must disadvantage the offender affected

by it.? (Weaver v. Graham, supra, 450 U.S. at pp. 28-29, some italics added, fns.

omitted.) This court has observed that there is no significant difference between the

federal and state ex post facto clauses. (Tapia v. Superior Court (1991) 53 Cal.3d 282,

295-297.)

In In re Ramirez (1985) 39 Cal.3d 931, we considered whether, under the state and

federal ex post facto clauses, a new statutory plan for awarding prison conduct credits

could be applied to prisoners whose crimes occurred before the effective date of the new

scheme, but whose prison behavior that could lead to a reduction in credits was

committed after the new scheme went into effect. (Id. at p. 932.) We concluded that it

may. (Ibid.) Applying the test set forth in Weaver v. Graham, supra, 450 U.S. at pages

28-29, to determine whether the new sentencing credit scheme was impermissibly

retrospective, we explained, ?For a law to be retrospective, ?it must apply to events

occurring before its enactment.? [Citation.] A retrospective law violates the ex post facto

clauses when it ?substantially alters the consequences attached to a crime already

completed, and therefore changes ?the quantum of punishment.? ? [Citation.] [?] We

conclude that the 1982 amendments are not retrospective and therefore do not violate the

ex post facto clauses. Petitioner, citing [In re Paez (1983) 148 Cal.App.3d 919],

contends that the 1982 amendments relate to the original offense, not to the infraction

committed in prison. We disagree. It is true that the 1982 amendments apply to

petitioner only because he is a prisoner and that he is a prisoner only because of an act

committed before the 1982 amendments. Nonetheless, the increased sanctions are

imposed solely because of petitioner?s prison misconduct occurring after the 1982

23


amendments became effective. In other words, the 1982 amendments apply only to

events occurring after their enactment. If any aspect of prison life is unconnected to a

prisoner’s original crime, it would seem to be the sanctions for his misconduct while in

prison. Accordingly, the 1982 amendments, which change the sanctions for that

misconduct, do not relate to petitioner?s original crime and are not retrospective under

Weaver [v. Graham].? (In re Ramirez, supra, 39 Cal.3d at pp. 936-937; see also Mills,

supra, 6 Cal.App.4th at p. 1285.)

The rationales of In re Ramirez, supra, 39 Cal.3d 931, and Mills, supra, 6

Cal.App.4th at page 1285, apply here and support rejection of petitioners? ex post facto

claim. True, section 3003.5(b) applies to these petitioners only by virtue of their status as

registered sex offenders, a status they achieved upon their convictions of qualifying sex

offenses prior to the enactment of Jessica?s Law and section 3003.5(b). Nevertheless, the

new residency restrictions apply to events occurring after their effective date ?

petitioners? acts of taking up residency in noncompliant housing upon their release from

custody on parole after the statute?s effective date. It follows that section 3003.5(b) is not

an ex post facto law if applied to such conduct occurring after its effective date because it

does not additionally punish for the sex offense conviction or convictions that originally

gave rise to the parolee?s status as a lifetime registrant under section 290. (Collins v.

Youngblood, supra, 497 U.S. at p. 42; Mills, supra, 6 Cal.App.4th at p. 1285.)



D. Petitioners? remaining claims

Petitioners further contend 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 support of these claims,

petitioners have appended declarations and various materials as exhibits to their petition

24


and traverse in an effort to establish a factual basis for each claim. CDCR, in its return,

has denied many of the allegations advanced in the petition in reliance on such exhibits.

In contrast with the retroactivity and ex post facto issues we have addressed above,

petitioners? remaining constitutional claims present considerably more complex ?as

applied? challenges to the enforcement of the new residency restrictions as parole

violations in the particular 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 supply 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

sufficiently established by those declarations and materials to permit this court to decide

the claims.

For example, petitioners have appended small maps to the petition (exhibit E),

which they argue establish that ?nearly all of the cities of San Diego, Los Angeles, and

San Francisco are off limits [to registered sex offenders released on parole].? But the

small maps, comprising almost indiscernible, variably shaded gray areas purporting to

depict the scarcity of section 3003.5(b) compliant housing across the state, contain no

dates reflecting when they were prepared, no street names or addresses, no indication of

where these petitioners are residing in relation to the maps, no indication of the locations

of any schools or ?parks where children regularly gather,? and no legend adequately

explaining how the maps were prepared or precisely what they purport to show. CDCR,

in turn, has denied the allegations made by petitioners in reliance on the maps, further

noting petitioners have not authenticated the maps on which they purport to rely.

As another example, petitioners allege in their traverse that section 3003.5(b)

?makes entire cities off-limits to sex offenders, including Petitioners,? that under the

residency restrictions, ?[section 290] registrants [are] unable to find a single compliant

25


home in the cities in which they were paroled,? and that the restrictions are ?so

unreasonably broad? as to leave those to whom it applies ?with no option but prison or

homelessness, as is the case here.? But these allegations appear to conflict with certain

materials appended to petitioners? traverse, specifically, a report to the Legislature and

Governor?s office, prepared in January 2008 by the California Sex Offender Management

Board (CASOMB),8 setting forth ?An Assessment of Current Management Practices of

Adult Sex Offenders in California.? (Exhibit O; CASOMB Report.) The CASOMB

Report indicates, under the subheading ?Current Status of Housing Compliance,? that

?As of December 9, 2007 [13 months after ? 3003.5(b) took effect, and two months after

the petition for writ of habeas corpus was filed in this court], 3,884 parolees subject to

Jessica?s Law were under the supervision of a parole agent in California communities.

3,166 of this population reside in compliant housing, while 718 have declared themselves

transient. . . . [?] Although the 3,884 parolees represent[] the total number of offenders

that remain in the community under parole supervision, and CDCR enforcement efforts

have resulted in near full compliance with the housing challenges of Jessica?[s] Law,

these offenders represent approximately half of the population subject to Jessica?s Law

released during this period (7516).? (CASOMB Rep., supra, at p. 125, italics added.)

The section 3003.5(b) housing compliance statistics reported in the CASOMB

Report for the first year the residency restrictions were in effect are difficult to reconcile

with petitioners? allegations that compliant housing has been virtually unavailable to

them in the various communities to which they have been paroled.

Finally, the matter of whether CDCR and, in particular, DAPO are obligated by

law to identify compliant housing for petitioners or otherwise assist them in locating and

8

CASOMB comprises representatives from the Attorney General?s office, CDCR,

regional parole administration, the judicial branch, district attorneys? offices, public
defenders? offices, probation departments, law enforcement agencies, as well as victims
advocates and licensed treatment providers, among others.

26


securing such housing,9 a matter that may factor into resolution of petitioners? claim that

section 3003.5(b) is being enforced against them as an unreasonable parole condition that

infringes on a number of their fundamental constitutional rights,10 also appears disputed

9

It bears observing that a parole term is a component of the inmate?s original

sentence, and that parolees remain in the constructive custody of CDCR for the duration
of their fixed parole terms and are not formally ?discharged? from the department?s
custody until the expiration of the parole term. (See ?? 3000, subd. (a)(1), 3056.) CDCR
has a statutory obligation to ?assist parolees in the transition between imprisonment and
discharge.? (?? 3000, subd. (a)(1), 3074.) The extent to which such obligation includes
assisting sex offender registrant parolees in identifying or securing housing in compliance
with section 3003.5(b) in the communities to which they are paroled remains unclear.

10

As emphasized at the outset, petitioners here challenge only the enforcement of

section 3003.5(b) as a statutory parole condition setting forth residency restrictions
applicable to paroled registered sex offenders like themselves. There is no evidence
before us of any attempts, to date, to enforce the statute outside of that limited context.
Accordingly, in this case, the inquiry into petitioners? challenge to section 3003.5(b) as
an unreasonable statutory parole condition that infringes on their constitutional rights is
necessarily circumscribed. The Legislature has given the CDCR and its DAPO
expansive authority to establish and enforce rules and regulations governing parole, and
to impose any parole conditions deemed proper. (?? 3052, 3053; see Terhune v. Superior
Court
(1998) 65 Cal.App.4th 864, 874 (Terhune).) ?These conditions must be
reasonable, since parolees retain constitutional protection against arbitrary and oppressive
official action.? (Ibid.; see also In re Stevens (2004) 119 Cal.App.4th 1228, 1234; People
v. Thompson
(1967) 252 Cal.App.2d 76, 84.) ?Nevertheless, the conditions may govern a
parolee?s residence
, his associates or living companions, his travel, his use of intoxicants,
and other aspects of his life.? (Terhune, at p. 874, italics added; see generally Morrissey
v. Brewer
(1972) 408 U.S. 471, 482 [parolees have fewer constitutional rights than do
ordinary persons]; People v. Burgener (1986) 41 Cal.3d 505, 531-532 (Burgener),
overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 754, 756.)


The dissent suggests that ?[w]hen a statutory restriction substantially impinges on

a person?s constitutional right to intrastate travel and does not further the statute?s
objective, it must be struck down as to that person.? (Dis. opn. of Moreno, J., post, at
pp. 16-17 & fn. 3 [suggesting the same result for a violation of the state constitutional
right of privacy].) But here, the threshold question common to all of petitioners?
remaining as-applied constitutional challenges to section 3003.5(b) is whether the
section, when enforced as a statutory parole condition against registered sex offenders,
constitutes an unreasonable parole condition to the extent it infringes on such parolees?
fundamental rights. ?Although a parolee is no longer confined in prison[,] his custody
status is one which requires and permits supervision and surveillance under restrictions

27


by the parties. Petitioners point to a statement in CDCR?s Policy No. 07-36 that cautions:

?The responsibility to locate and maintain compliant housing shall ultimately remain with

the individual parolee through utilization of available resources? (Policy No. 07-36,

supra, at p. 2) in support of their allegation that ?Respondent has provided little to no

assistance to individual parolees attempting to find compliant housing. Petitioners and

other noncompliant parolees have not been informed of areas in their counties where

compliant housing may be found.? CDCR, in turn, ?denies the allegation that it provides

?little to no assistance to individual parolees attempting to find compliant housing?; it

does provide such assistance.?

With regard to petitioners? remaining claims, we therefore conclude that

evidentiary hearings will have to be conducted to establish the relevant facts necessary to

decide each such claim. The trial courts of the counties to which petitioners have been

paroled are manifestly in the best position to conduct such hearings and find the relevant

facts necessary to decide the claims with regard to each such jurisdiction. These facts

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 each particular jurisdiction; and a


which may not be imposed on members of the public generally.? (Burgener, supra, 41
Cal.3d at p. 531; see In re Stevens, supra, 119 Cal.App.4th at p. 1233.) Hence, the
limited nature of the rights retained by registered sex offenders while serving out a term
of parole
, whether it be with regard to the right to travel, to privacy, or to associate with
persons of one?s choosing, must inform the inquiry as to whether section 3003.5(b)
places reasonable or unreasonable restrictions on the paroles of registered sex offenders.

28


complete record of the protocol CDCR is currently following to enforce section

3003.5(b) in those respective jurisdictions.

III. DISPOSITION

The claims that section 3003.5(b), construed as a statutory parole condition, is

being impermissibly retroactively enforced as to these petitioners, and as thus enforced,

constitutes an ex post facto law under the state and federal Constitutions, are denied. For

consideration of petitioners? remaining claims, the petition and orders to show cause

previously issued are hereby ordered transferred to the Courts of Appeal as follows: In re

E.J. on Habeas Corpus, S156933, to the First District Court of Appeal; In re S.P. on

Habeas Corpus, S157631, to the Sixth District Court of Appeal; In re J.S. on Habeas

Corpus, S157633, and In re K T. on Habeas Corpus, S157634, to Division One of the

Fourth District Court 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. (Cal. Rules of Court, rule 10.1000(a).) The

order staying enforcement of section 3003.5(b) as to these four petitioners, previously

issued on October 10, 2007, shall remain in effect.

BAXTER, J.


WE CONCUR:


GEORGE, C. J.
CHIN, J.
CORRIGAN, J.


29










CONCURRING OPINION BY WERDEGAR, J.

Before the court today are four petitioners who were convicted of a sexual offense

before passage of Proposition 83 (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7,

2006)), who were required by law to register as sex offenders as a result and who have

been paroled from prison after passage of Proposition 83. All four petitioners challenge

the attempt by the California Department of Corrections and Rehabilitation (CDCR) to

enforce against them, as a statutory parole condition, Penal Code section 3003.5,

subdivision (b) (hereafter section 3003.5(b)), which was enacted as part of Proposition

83. That new law prohibits sex offender registrants from living ?within 2000 feet of any

public or private school, or park where children regularly gather.? (? 3003.5(b).) The

majority concludes that enforcing this 2,000-foot residency restriction against petitioners

as a parole condition does not constitute an impermissible retroactive application of the

law nor violate their right to be free of an ex post facto application of the law. The

majority remands the balance of petitioners? constitutional claims to the lower courts to

permit petitioners to pursue their ?as applied? challenges to enforcement of the new

residency restrictions against them.

I concur in the majority?s result, but not necessarily its reasoning. Specifically, I

agree that for these four petitioners, all of whom were convicted of qualifying sex

offenses before passage of Proposition 83 and who were paroled from prison after such

passage, enforcing the 2,000-foot residency restriction as a condition of their parole

involves no impermissible retroactive or ex post facto application of the law. Under the

1


plain meaning of section 3003.5(b), the critical date is not the date of one?s conviction for

a qualifying sex crime, nor (contrary to the majority) the date of one?s parole from prison.

The critical date is instead the date one is found living in noncompliant housing.1 As the

CDCR proposes to enforce section 3003.5(b) as a parole condition against all four

petitioners for their living conditions now ? that is, after passage of Proposition 83 ? I

agree with the majority?s conclusion that such action by the CDCR does not violate any

rights petitioners may possess.

But I emphasize the narrowness of both the issue before the court and my

agreement with the majority. As the majority recognizes, the Legislative Analyst?s

description of Proposition 83 and section 3003.5(b) in the official Voter Information

Guide stated: ?A violation of this provision would be a misdemeanor offense, as well as

a parole violation for parolees.? (Voter Information Guide, Gen. Elec. (Nov. 7, 2006)

analysis of Prop. 83 by Legis. Analyst, p. 44, italics added.) As no petitioner presently

before the court is threatened with a misdemeanor prosecution, we address in this case

the meaning of section 3003.5(b) only as it relates to a condition of parole, and not

whether it is also a misdemeanor crime.

Moreover, now before the court are four parolees who were paroled after passage

of Proposition 83. We thus also have no occasion here to address whether the 2,000-foot

residency limit might apply to those who completed their paroles before the effective date

of Proposition 83 (see, e.g., Doe v. Schwarzenegger (E.D.Cal. 2007) 476 F.Supp.2d 1178,

1180 [?John Doe II?]); to those whose parole period began before, but is scheduled to

terminate after, that date (id. at pp. 1179-1180 [?John Doe I?]); or even to the thousands


1

Section 3003.5(b) 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.?

2


of persons subject to sex offender registration who, for whatever reason, are not currently

on parole.

Finally, like the majority, I express no opinion on petitioners? various other

constitutional challenges to section 3003.5(b) and agree that we must remand these cases

to the lower courts to permit the parties to litigate the factual issues necessary to the

proper resolution of their respective cases.

With those caveats, I concur in the result reached by the majority.

WERDEGAR, J.

3












DISSENTING OPINION BY MORENO, J.

I.

I respectfully dissent.

Penal Code section 3003.5, subdivision (b) (section 3003.5(b)) cannot be applied

to those who suffered their convictions before the date Proposition 83 (Prop. 83, as

approved by the voters, Gen. Elec. (Nov. 7, 2006)) was enacted. Nothing in the language

of the proposition or in the relevant extrinsic materials supports any other conclusion.1

Therefore, section 3003.5(b) does not apply to these petitioners and I dissent from the

majority opinion?s contrary conclusion.

Before I turn to the majority opinion, I begin with a review of ?well-established

general principles governing the question whether a statutory or constitutional provision

should be interpreted to apply prospectively or retroactively.? (Strauss v. Horton (2009)

46 Cal.4th 364, 470.) There is a statutory presumption against retroactive application of

penal laws, articulated in section 3, first enacted in 1872, which states: ?No part of [the

Penal Code] is retroactive, unless expressly so declared.? This presumption is, as we

have noted, rooted in federal ?constitutional principles? reflected in such provisions as

the ex post facto clause, the Fifth Amendment?s takings clause, and the due process

clause of the United States Constitution. (Myers v. Philip Morris Companies, Inc. (2002)

28 Cal.4th 828, 841.)


1

All further statutory references are to the Penal Code.

1


A statute is retroactive when it ?change[s] the legal consequences of past conduct

by imposing new or different liabilities . . . .? (Tapia v. Superior Court (1991) 53 Cal.3d

282, 291.) ?California continues to adhere to the time-honored principle . . . that in the

absence of an express retroactivity provision, a statute will not be applied retroactively

unless it is very clear from extrinsic sources that the Legislature or the voters must have

intended a retroactive application.? (Evangelatos v. Superior Court (1988) 44 Cal.3d

1188, 1208-1209, italics added.) As we have repeatedly explained, absent an express

declaration of retroactivity, ?a statute will not be applied retroactively unless it is very

clear from extrinsic sources that the Legislature or the voters must have intended a

retroactive application.? (Id. at p. 1209, italics added.) The key here is clarity: ?a statute

may be applied retroactively only if it contains express language of retroactivity or if

other sources provide a clear and unavoidable implication that the Legislature [or the

voters] intended retroactive application.? (Myers v. Philip Morris Companies, Inc.,

supra, 28 Cal.4th at p. 844, second italics added.)

Ambiguous, vague or inconclusive statements cited as proof of an intention that a

statute be applied retroactively are not sufficient for that purpose. ?[A]t least in modern

times, we have been cautious not to infer the voters? or the Legislature?s intent on the

subject of prospective versus retrospective operation from ?vague phrases? [citation] and

?broad, general language? [citation] in statutes, initiative measures and ballot pamphlets.?

(Californians for Disability Rights v. Mervyn?s, LLC (2006) 39 Cal.4th 223, 229-230.)

When a statute is ambiguous regarding retroactivity, it is construed to be prospective.

(Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 841.) Moreover, ?a

remedial purpose does not necessarily indicate an intent to apply the statute retroactively.

Most statutory changes are, of course, intended to improve a preexisting situation and to

bring about a fairer state of affairs, and if such an objective were itself sufficient to

demonstrate a clear legislative intent to apply a statute retroactively, almost all statutory

2


provisions and initiative measures would apply retroactively rather than prospectively.?

(Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1213.)

The question of whether Proposition 83 was intended to apply retroactively has

already been recognized, asked, and answered by two decisions of the Court of Appeal

and a federal district court judge. They unanimously concluded that Proposition 83 does

not contain an express statement of retroactivity. The two Court of Appeal decisions are

People v. Whaley (2008) 160 Cal.App.4th 779 and Bourquez v. Superior Court (2007)

156 Cal.App.4th 1275. The provision of Proposition 83 at issue in both of those cases

was the part of the initiative that extended the commitment terms of persons determined

to be sexually violent predators under the Sexually Violent Predator Act (SVPA) (Welf.

& Inst. Code, ? 6600 et seq.) from two years to an indeterminate term. (People v.

Whaley, supra, 160 Cal.App.4th at pp. 785-786; Bourquez v. Superior Court, supra, 156

Cal.App.4th at pp. 1279-1280.)

In Bourquez, the retroactivity question was whether the new indeterminate term

for sexually violent predators could be applied to individuals who had pending

recommitment petitions at the time Proposition 83 was enacted. As the starting point of

its analysis, the court observed: ?Proposition 83 is entirely silent on the question of

retroactivity, so we presume it is intended to operate only prospectively. The question is

whether applying its provisions to pending petitions to extend commitment is a

prospective application.? (Bourquez v. Superior Court, supra, 156 Cal.App.4th at

p. 1288.) The court ultimately concluded that ?[b]ecause a proceeding to extend

commitment under the SVPA focuses on the person?s current mental state, applying the

indeterminate term of commitment of Proposition 83 does not attach new legal

consequences to conduct that was completed before the effective date of the law.

[Citation.] Applying Proposition 83 to pending petitions to extend commitment under the

3


SVPA to make any future extended commitment for an indeterminate term is not a

retroactive application.? (Id. at p. 1289.)

People v. Whaley involved a different twist on the question of whether the change

in the law regarding SVPA commitments could be applied retroactively. In Whaley, the

People sought to amend the defendant?s 1999 SVPA commitment, which had been for

two years, and convert it into an indeterminate term under Proposition 83. The trial court

granted the People?s motion. On appeal, the order was reversed on the ground that

applying Proposition 83 to a term of commitment imposed before its enactment

constituted an impermissible retroactive application of the initiative. (People v. Whaley,

supra, 160 Cal.App.4th at pp. 796-803.) Like the court in Bourquez, the Whaley court

found that ?[t]he language of Proposition 83 does not contain an express statement of

retroactivity.? (Whaley, at p. 796.) Furthermore, ?[a]lso absent is a clear indication in

the statutory language, or in the voter information guide, that the voters intended an

indeterminate term to be applied retroactively to completed commitment proceedings.?

(Ibid.)

The court considered and rejected various interpretations of the statutory language

and language in the ballot pamphlet advanced by the People to demonstrate an intent for

retroactive application. Significantly, the court was not swayed even by its recognition

?that the electorate?s intent regarding Proposition 83 was ?to strengthen and improve the

laws that punish and control sexual offenders.? (Voter Information Guide, Gen. Elec.

[(Nov. 7, 2006)] text of Prop. 83, p. 138.)? (People v. Whaley, supra, 160 Cal.App.4th at

p. 801.)

While neither Bourquez nor Whaley involved the residency restriction enacted by

Proposition 83, Doe v. Schwarzenegger (E.D.Cal. 2007) 476 F.Supp.2d 1178 did. In

Doe, the federal district court held that section 3003.5(b) could not be applied

retroactively to persons convicted of registrable offenses ?prior to the effective date of

4


the statute and who were paroled, given probation, or released from incarceration prior to

that date.? (Doe, at p. 1179, fn. 1.) At the outset of its analysis, the district court cited

the settled rule that ?it [was] obligated to adopt the interpretation of the law that best

avoids constitutional problems,? and expressed its concern that ?reading [Prop. 83]

retroactively would raise serious ex post facto concerns, and the court is obligated to

avoid doing so if it can reasonably construe the statute prospectively.? (Id. at p. 1181.)

Like the courts deciding Bourquez and Whaley, the district court noted that

Proposition 83 ?does not expressly address the issue of retroactivity, but it is well-

established in California that statutes operate prospectively unless there is clear evidence

of intent to the contrary.? (Doe v. Schwarzenegger, supra, 476 F.Supp.2d at p. 1181.)

The court concluded ?it is not ?very clear? from extrinsic sources that the intent of the

voters was to make [Prop. 83] retroactive.? (Id. at p. 1182.) The court rejected the state?s

assertion that language in the ballot pamphlet regarding the number of registered sex

offenders in California, and the intent of the initiative to create predator-free zones,

evinced a clear intention that the initiative be retroactively applied. ?First, the reference

to the number of sex offenders in California is a neutral statement of fact, which voters

could have reasonably construed as characterizing the scope of the problem and its

potential expansion, rather than as purporting to address the problem in its entirety.

Second, while the term ?predator free zones? is troubling, it is not ?very clear? that it

contemplates retroactive application. Rather, it is the type of sloganeering to be expected

of an argument in favor of the law, not to be taken literally. The [initiative] does not, for

instance, bar sex offenders from entering the 2,000 feet zone around schools or parks; it

only prohibits them from residing there. Accordingly, voters could reasonably interpret

the quoted language as creating a goal of establishing ?predator free zones,? which the

[initiative] takes one step toward achieving, albeit prospectively.? (Ibid.)

5


In light of this unanimity among the courts that have addressed the retroactivity

issue, the majority opinion?s conclusion that application of section 3003.5(b) to these

petitioners is prospective rather than retroactive is remarkable. The majority opinion

reaches this conclusion purportedly by examining the ?plain language? of section

3003.5(b) under which, it says, ?any convicted sex offender already subject to the

lifelong registration requirement who is released from custody on parole, whether it be

after service of a term in custody for an initial sex offense conviction, a new sex offense

conviction, or a new non-sex-offense conviction, becomes subject to the new mandatory

parole residency restrictions for the duration of his parole term. (? 3003.5(b).)? (Maj.

opn., ante, at p. 13.)

Citing People v. Grant (1999) 20 Cal.4th 150, the majority opinion reasons that

the crucial date for the retroactivity analysis in this case is not the petitioners? long ago

convictions of the registrable offenses but the dates of their release on parole from recent,

nonsexual offenses: ?Section 3003.5(b) places restrictions on where a paroled sex

offender subject to lifetime registration pursuant to section 290 may reside while on

parole. For purposes of retroactivity analysis, the pivotal ?last act or event? (Grant,

supra, 20 Cal.4th at p. 157) that must occur before the mandatory residency restrictions

come into play is the registered sex offender?s securing of a residence upon his release

from custody on parole.? (Maj. opn., ante, at p. 15.)

A plain language reading of the statute does not support the majority opinion?s

result. The statute says simply: ?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).) It does not refer to parole at all, much less bear the weight

of interpretation that the majority opinion would give it ? e.g., ?any convicted sex

offender already subject to the lifelong registration requirement who is released from

6


custody on parole, whether it be after service of a term in custody for an initial sex

offense conviction, a new sex offense conviction, or a new non-sex-offense conviction,

becomes subject to the new mandatory parole residency restrictions for the duration of

his parole term. (? 3003.5(b).)? (Maj. opn., ante, at p. 13.)

Indeed, as the majority opinion acknowledges, it is not entirely clear to whom

section 3003.5(b) applies ? all registered sex offenders or only those released on parole.

(See maj. opn., ante, at pp. 11-12, & fn. 5.) Enforcement of the residency restriction

against parolees is not mandated by the plain language of the statute; it was an

administrative decision by the California Department of Corrections and Rehabilitation

(CDCR) reached eight months after Proposition 83 was enacted. (See CDCR, Policy No.

07-36: Implementation of Prop. 83, aka Jessica?s Law (Aug. 17, 2007); Cal. Code Regs.,

tit. 15, ? 2616, subd. (a)(15).) Therefore, nothing in the plain language of the statute

supports the majority opinion?s assertion that section 3003.5(b) was intended to apply

prospectively to parolees upon their release from custody on parole.2

Moreover, the majority opinion?s characterization of what constitutes the pivotal

date for purposes of retroactivity analysis in this case is simply wrong. These petitioners

did not become subject to the residency restriction when they were released from custody

on parole for nonsexual offenses; they were subject to the residency restriction by virtue

2

The fact that it took eight months for someone to decide how and against whom

section 3003.5(b) was to be enforced also undermines the repeated assertions by the
majority opinion that these petitioners were on notice that the restriction applied to them
as soon as they were released on parole and, even less accurately, the implication that,
armed with this knowledge, they intentionally moved into noncompliant housing. (Maj.
opn., ante, at pp. 13, 17-20.) If those charged with enforcing the residency restriction did
not understand its scope or application until months after it was enacted, how can these
petitioners be charged with notice, actual or constructive, that it applied to them at any
point before they were served with the 45-day compliance letter? They cannot. How can
they have flouted a condition of parole which had not yet been applied to them when they
moved into residences later determined to be noncompliant? They did not ? they were
just going home.

7


of their status as registered sex offenders and they acquired that status upon their

convictions for their sex offenses. (See People v. McClellan (1993) 6 Cal.4th 367, 380

[?the sex offender registration requirement . . . is . . . a statutorily mandated element of

punishment for the underlying offense?]; Barrows v. Municipal Court (1970) 1 Cal.3d

821, 825 [? 290 ?applies automatically when a person is convicted of one of the

enumerated offenses? (italics added)].) Indeed, the current registration law in effect

requires eligible offenders to register even before they are released from prison.

(? 290.016.) Clearly, the registration requirement is imposed upon conviction of the

registrable offense as are all ancillary restrictions that flow from that requirement

including the residency restriction. Therefore, for purposes of the retroactivity analysis

here, the pivotal date is the date of conviction for the registerble offense.

None of the three authorities upon which the majority opinion so heavily relies ?

People v. Grant, supra, 20 Cal.4th 190, Bourquez v. Superior Court, supra, 156

Cal.App.4th 1275, and People v. Mills (1992) 6 Cal.App.4th 1278 ? compels a different

result because each one is distinguishable.

Grant is factually distinguishable because it involved the violation of a statute ?

continuous sexual abuse (? 288.5, subd. (a)) ? in which some events occurred before the

date of the statute?s effective date but others clearly occurred afterwards. (Grant, supra,

20 Cal.4th at p. 153.) Additionally, the jury was instructed that it could convict the

defendant of the offense only if it found ?that one of the required minimum of three acts

of molestation occurred after section 288.5?s effective date. In other words, defendant

could be convicted only if the course of conduct constituting the offense of continuous

sexual abuse was completed after the new law became effective. Because the last act

necessary to trigger application of section 288.5 was an act of molestation that defendant

committed after section 288.5?s effective date, defendant?s conviction was not a

retroactive application of section 288.5 and therefore not a violation of the statutory

8


prohibition against retroactive application of the Penal Code.? (Grant, supra, 20 Cal.4th

at pp. 157-158, first italics added.) In this case, the conduct which is the basis for

application of section 3003.5(b) did not straddle the effective date of Proposition 83.

That conduct which led to petitioners? convictions and triggered the registration

requirement occurred long before passage of Proposition 83.

Borquez is also inapposite. As the Court of Appeal observed, pending proceedings

to extend commitment under the SVPA focus on current dangerousness and, therefore,

the change in law that extended commitment indefinitely did not attach new legal

consequences to past conduct. (Borquez v. Superior Court, supra, 156 Cal.App.4th at p.

1289.) In contrast, the residency restriction relates back to the original convictions for

which the petitioners in this case were required to register as sex offenders ? therefore,

retroactive application of section 3003.5(b) does ?change[ ] the legal consequences of

past conduct by imposing new or different liabilities? (Tapia v. Superior Court, supra, 53

Cal.3d at p. 291) than existed at the time of the convictions.

In Mills, the defendant suffered a 1981 felony conviction for being in possession

of marijuana for sale. In 1990, he was arrested and charged with being a felon in

possession of a firearm ? a shotgun. At the time of his 1981 felony conviction,

however, the weapons statute proscribed possession of concealed weapons only. It was

not until 1989 that the statute was amended to prohibit possession of any firearm,

effective in 1990. (People v. Mills, supra, 6 Cal.App.4th at p. 1282.) The defendant

argued that charging him under the amended version of the weapons statute violated the

proscription against ex post facto laws because ?the 1990 change in the law increases the

punishment for his 1981 conviction, and is therefore a prohibited ex post facto law.? (Id.,

at p. 1283.)

The Court of Appeal rejected the argument: ?Here defendant was convicted of

conduct, his possession of a shotgun occurring after the effective date of the statute. His

9


conduct was a violation of the new statute, rather than an increase of punishment for the

earlier offense of possessing marijuana for sale. Although the statute only applied to him

because of his status as a person convicted of a felony, and the felony conviction

occurred before the statute became effective, the fact of his prior conviction only places

him into a status which makes the new law applicable to him. The legal consequences of

his past conduct were not changed ? only a new law was applied to his future conduct.?

(People v. Mills, supra, 6 Cal.App.4th at p. 1286, fn. omitted.) In reaching this

conclusion, the court drew an analogy to habitual offender statutes, noting that ?courts

have generally held that a statute which increased the punishment of prior offenders is not

an ex post facto law if it is applied to events occurring after its effective date.? (Ibid.)

Analytically, Mills is distinguishable from the case before us. Crucial to the

court?s analysis in Mills was the violation by the defendant of a penal statute that was

unrelated to the underlying conduct which had led to his earlier conviction for drug

possession. In other words, the defendant was initially convicted of, and punished for,

possession of a drug for sale. His later conviction was not related to his possession of

marijuana but to his possession of a firearm ? two entirely separate events. It is true that

his earlier conviction gave rise to his felon status which then became an element of the

second offense, but he was not being punished for his felon status alone ? it was his

status plus conduct that was entirely unrelated to his earlier drug possession. The court?s

reliance on habitual offender statutes reinforces this point. While conviction for prior

felonies may make an offender eligible for enhanced punishment if he commits a new

crime, the conduct for which the defendant was punished in the earlier conviction is not

the basis for the enhanced punishment for the subsequent conviction.

In this case, however, the residency restriction applies to petitioners for no other

reason than their status as registered sex offenders, which was triggered by the conduct

that led to their convictions of the qualifying sex offenses. The residency restriction has

10


no other object than to increase the legal disabilities imposed upon registered sex

offenders because of their earlier conduct. This is made abundantly clear by Proposition

83?s statement of purpose: ?California must also take additional steps to monitor sex

offenders, to protect the public from them, and to provide adequate penalties for and

safeguards against sex offenders, particularly those who prey on children.? (Prop. 83,

? 2, subd. (h).) The intent of Proposition 83 was to impose further restrictions on

registered sex offenders based on the conduct that had led to their qualifying convictions.

Thus, the analogy to Mills fails.

Stripped of its analytical garb, the majority opinion?s analysis is transparently

bare. The majority cannot find either in the plain language of section 3003.5(b) or in the

ballot pamphlet an explicit statement or a clear and unavoidable implication that the

residency restriction was intended to be applied retroactively to individuals like

petitioners whose qualifying offenses for registration purposes occurred long before

Proposition 83 was applied. Instead, the majority dismisses the issue by clinging to the

fiction that release upon parole is the pivotal date for retroactivity analysis and, therefore,

application to these petitioners is prospective.

Ironically, this is the same implausible argument that we unanimously repudiated

in Strauss v. Horton, supra, 46 Cal.4th 364. In Strauss, the interveners argued that

Proposition 8 ? banning same-sex marriages in California ? applied to such marriages

performed before enactment of the initiative, during the period when same-sex couples

were allowed to marry by virtue of our decision in In re Marriage Cases (2008) 43

Cal.4th 757. The argument advanced by the interveners was that, because Proposition 8

banned same-sex marriages after its enactment ?the measure is not being applied

retroactively but rather prospectively, even if the marriages that are now (or in the future

would be) denied recognition were performed prior to the adoption of Proposition 8.?

(Strauss, supra, 46 Cal.4th at p. 471.) We easily saw through this argument: ?Were

11


Proposition 8 to be applied to invalidate or to deny recognition to marriages performed

prior to November 5, 2008, rendering such marriages ineffective in the future, such action

would take away or impair vested rights acquired under the prior state of the law and

would constitute a retroactive application of the law.? (Id. at p. 472.)

In this case, retroactive application of Proposition 83 would clearly ? ? ?attach[] a

new disability, in respect to transactions or considerations already past? ? ? (Myers,

supra, 28 Cal.4th at p. 839; see Strauss, supra, 46 Cal.4th at pp. 471-472), thus rendering

it retroactive here as application of Proposition 8 would have been in that case. The

majority opinion thereby gives effect to an intent that was nowhere expressed in the

initiative or the ballot pamphlet even if, in the process, our carefully developed

retroactivity jurisprudence is eviscerated. I cannot join in this plain and unjustified

rejection of longstanding retroactivity principles.

II.

Given the majority?s conclusion on the retroactivity issue, this case will need to be

remanded for further proceedings. As the majority states, the trial courts on remand must

determine the relevant facts necessary to decide petitioners? as-applied challenges, which

?would include, but is 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.? (Maj. opn., ante, at p. 26.)

12


Also to be considered on remand is the extent to which even moderate safety

restrictions may infringe on the constitutional right to intrastate travel. ?The right of

intrastate travel has been recognized as a basic human right protected by article I,

sections 7 and 24 of the California Constitution.? (Tobe v. City of Santa Ana (1995) 9

Cal.4th 1069, 1100.) This right has been elaborated in the context of child custody

disputes where, it has been said, the right to intrastate travel also embraces ?the

concomitant right not to travel.? (In re Marriage of McGinnis (1992) 7 Cal.App.4th 473,

480.) ?Courts cannot order individuals to move to and live in a community not of their

choosing.? (In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1581.)

The Courts of Appeal have struck down various probation conditions because they

violated the constitutional right to intrastate travel. In In re White (1979) 97 Cal.App.3d

141 the defendant was convicted of prostitution. The trial court imposed a condition of

probation that barred her from entering areas of the city ? Fresno ? where there was

prostitution activity. The reviewing court struck the condition. The court noted, with

respect to the constitutional issues raised by the defendant that ?[w]hile White?s

reasonable expectations regarding association and travel have necessarily been reduced,

the restriction should be regarded with skepticism. If available alternative means exist

which are less violative of the constitutional right and are narrowly drawn so as to

correlate more closely with the purposes contemplated, those alternatives should be

used.? (Id. at p. 150; see also People v. Beach (1983) 147 Cal.App.3d 612, 622-623;

People v. Bauer (1989) 211 Cal.App.3d 937, 944-945.)

Most recently, in People v. Smith (2007) 152 Cal.App.4th 1245 (Smith), the Court

of Appeal struck down a blanket probation condition imposed on all registered sex

offenders by the Los Angeles probation department that forbid them from leaving the

county for any reason. As the court observed: ?Smith has a constitutional right to

intrastate travel [citations] which, although not absolute, may be restricted only as

13


reasonably necessary to further a legitimate governmental interest.? (Id. at p. 1250.) The

court found no such reasonable necessity in that case, concluding, inter alia, that ?the

prohibition bears no reasonable relation to the crime.? (Id. at p. 1252.)

We do not consider a probation condition in the present case. But whether section

3003.5(b) is viewed as a parole condition or a condition imposed by statute that extends

beyond parole, the analysis is the same: a restriction on where an ex-offender may live

infringes upon that person?s right to intrastate travel, which includes as one component

the right to choose where to live and not to live. That right is not absolute, but the

infringement may be imposed ?only as reasonably necessary to further a legitimate

governmental interest.? (Smith, supra, 152 Cal.App.4th at p. 1250.)

It is of course true, as the majority points out, that ? ?[a]lthough a parolee is no

longer confined in prison[,] his custody status is one which requires and permits

supervision and surveillance under restrictions which may not be imposed on members of

the public generally.? ? (Maj. opn., ante, at p. 27, fn. 10, quoting People v. Burgener

(1986) 41 Cal.3d 505, 531.) As the majority recognizes, however, even if the statute is

interpreted to impose no more than parole conditions, such conditions ? ?must be

reasonable, since parolees retain constitutional protection against arbitrary and oppressive

official action.? ? (Maj. opn., ante, at p. 27, fn. 10, quoting Terhune v. Superior Court

(1998) 65 Cal.App.4th 864, 874.) The reasonableness of parole conditions is gauged by

the same standard developed in the context of probation conditions in People v.

Dominguez (1967) 256 Cal.App.2d 623, and adopted by this court in People v. Lent

(1975) 15 Cal.3d 418 (Dominguez/Lent). As explained in Dominguez: ?A condition of

probation which (1) has no relationship to the crime of which the offender was convicted,

(2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct

which is not reasonably related to future criminality does not serve the statutory ends of

probation and is invalid.? (Dominguez, supra, 256 Cal.App.2d at p. 627; Lent, supra, 15

14


Cal.3d at p. 486.) The Dominguez/Lent criteria applies to evaluating the reasonableness

of parole conditions. (People v. Burgener, supra, 41 Cal.3d at p. 532; People v. Stevens

(2004) 119 Cal.App.4th 1228, 1233; In re Naito (1986) 186 Cal.App.3d 1656, 1661.)

Section 3003.5(b)?s residency restrictions apply without exception to those who

have committed certain enumerated sex offenses and are required to register as a sex

offender. However, in the case of petitioners K.T. and E.J., there is no indication from

the record that their sexual offenses involved children, and it is unclear why they should

be subject to the statute?s residency restrictions, which as the majority explains, is for the

purpose of protecting children by ?creating ?predator free zones around schools and parks

to prevent sex offenders from living near where our children learn and play . . . .? ? (Maj.

opn., ante, at p. 5, quoting Voter Information Guide, supra, argument in favor of Prop.

83, at p. 46.) The application of the statute to these two petitioners would appear to be

not merely not in furtherance of the statute?s goal, but actually contrary to that goal, since

it would divert scarce law enforcement resources toward enforcing a restriction that has

no demonstrable effect on increasing child safety. Nor, if viewed strictly as a parole

condition, would the statutory restriction appear to bear any relationship to the crimes of

which these petitioners were convicted. (See People v. Stevens, supra, 119 Cal.App.4th

at p. 1233.)

On the other hand, petitioner S.P. was convicted of raping a 15-year-old girl when

he was 16. Also, it is unclear whether the Texas sex offense of which petitioner J.S. was

convicted, which has as an element the ? ?intent to arouse or gratify the sexual desire of

any person? ? involved a minor as an actual or intended or potential victim. (Maj. opn.,

ante, at pp. 8-9.) As to S.P. and possibly to J.S., in order to determine whether the right

to intrastate travel is violated, the severity of the restriction must be determined as well as

whether such severity is justified in furtherance of the statutory goal.

15


It is not the function of courts to judge the wisdom of a statute, but it is their

function to determine its constitutionality. When a statutory restriction substantially

impinges on a person?s constitutional right to intrastate travel and does not further the

statute?s objective, it must be struck down as to that person.3 Whether such an outcome

is appropriate for the as-applied challenges in the present case is a matter to be

determined on remand.

MORENO, J.

I CONCUR: KENNARD, J.


3

The restrictions imposed by section 3003.5 (b) may also violate the right to

privacy found in article I, section 1 of the California Constitution. (See Robbins v.
Superior Court
(1985) 38 Cal.3d 199, 213-215 [the privacy clause?s protection of
individual autonomy forbids government from requiring individuals receiving public
assistance benefits to give up their homes and live in county facilities].)

16


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re E. J. on Habeas Corpus
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S156933
Date Filed: February 1, 2010
__________________________________________________________________________________

Court:

County:
Judge:


__________________________________________________________________________________

Attorneys for Appellant:

Prison Law Office, Donald Specter, Vibeke Norgaard Martin, Rachel Farbiarz; Rosen, Bien & Galvan, Ernest
Galvan, Nura Maznavi, Loren Stewart and Shirley Huey for Petitioners.

Law Offices of Edward Baum and Edward Baum as Amici Curiae on behalf of Petitioners.

Christina Allbright for California Coalition on Sexual Offending and The Association for the Treatment of Sexual
Abusers as Amici Curiae on behalf of Petitioners.

Alan L. Schlosser and Michael T. Risher for American Civil Liberties Union of Northern California as Amici Curiae
on behalf of Petitioners.

Gary Steven Bowman, in pro. per., as Amici Curiae on behalf of Petitioners.

Robert Jacob Goldenflame, in pro. per., as Amici Curiae on behalf of Petitioners.


__________________________________________________________________________________

Attorneys for Respondent:

Mennemeier, Glassman & Stroud, Kenneth C. Mennemeier and Kelcie M. Gosling for Respondent Secretary of the
California Department of Corrections and Rehabilitation.







Counsel who argued in Supreme Court (not intended for publication with opinion):

Ernest Galvan
Rosen, Bien & Galvan
315 Montgomery Street, 10th Floor
San Francisco, CA 94104
9415) 433-6830

Kenneth C. Mennemeier
Mennemeier, Glassman & Stroud
980 9th Street, Suite 1700
Sacramento, CA 95814-2736
(916) 553-4000