C.A. Reaffirms Ruling Requiring Jury Findings to Impose Sex Offender Registration Requirement

9-30-2010 California:

The Fourth District Court of Appeal yesterday reaffirmed its ruling that an order requiring a defendant to register as a sex offender subject to Jessica’s Law’s restriction on residency within 2,000 feet of a school or park where children gather must be based on facts found by a jury.

The California Supreme Court had ordered Div. Three to reconsider the 2008 decision in light of the high court’s opinion earlier this year that the restriction was not additional punishment when imposed on parolees already registered as sex offenders.

Steven Lloyd Mosley challenged an Orange Superior Court judge’s order that he register as a sex offender after a jury convicted Mosley of assaulting a 12-year-old girl in the carport of an Anaheim apartment, but acquitted him of committing a lewd act on the minor. Judge David A. Hoffer based the ruling on factual findings he made about Mosley’s motivations for the 2003 assault.

California’s sex offender registration laws grant a judge discretion to order sex offender registration for “any offense” if the judge finds that the offense was “committed as a result of sexual compulsion or for purposes of sexual gratification.” Mosley appealed Hoffer’s order, arguing that those findings needed to be proven beyond a reasonable doubt to the jury, and Div. Three initially agreed in an opinion by Justice Raymond J. Ikola.

Joined by Justices Kathleen O’Leary and Eileen C. Moore, Ikola wrote that sex offender registration, by itself, was merely “regulatory” and “remedial.” But he reasoned that voters’ 2006 approval of Jessica’s Law, which imposed a residency requirement potentially banishing registered sex offenders from whole neighborhoods or cities, increased the punitive effect of registration beyond the statutory maximum penalty, effectively constituting punishment.

The U.S. Supreme Court held in in Apprendi v. New Jersey (2000) 530 U.S. 466 that a defendant has the right to a jury trial on any facts—other than a prior conviction—that increase the penalty for a conviction beyond the statutory maximum. The high court relied on that rationale to strike down mandatory federal guidelines for sentencing in 2005 and a feature of California’s Determinate Sentencing Law in 2007.

The California Supreme Court directed Ikola and his panel to reconsider in light of the state high court’s opinion in In re E.J. (2010) 47 Cal.4th 1258. Reviewing the imposition of the residency restriction as a parole condition, the justices there held that the restriction applied prospectively to four registered sex offenders paroled after passage of Jessica’s Law.

But the court in E.J. did not address the 2,000-foot residency limit’s application to registered sex offenders not already on parole, leaving unanswered whether the restriction constituted increased punishment for an offense when a trial court imposed discretionary registration as part of a sentence.

Focusing on that question, O’Leary wrote on behalf of the appellate panel that the restriction was punishment due to its effect, and she ordered the sex offender registration requirement stricken from the judgment against Mosley.

“We leave the substance of the sex offender registration scheme untouched,” she said. “Courts may impose discretionary sex offender registration; registered sex offenders may be subject to the residency restriction. We hold only that imposing the residency restriction through discretionary sex offender registration as part of the sentencing on the underlying offense increases the penalty for that offense beyond the statutory maximum. Accordingly, the facts supporting the imposition of the registration requirement must be found true by a jury beyond a reasonable doubt.”

Ikola and Moore joined O’Leary in her opinion.

The case is People v. Mosley, 10 S.O.S. 5606. ..Source.. STEVEN M. ELLIS, Staff Writer