This is a rather interesting case. In essence, the man (charged w/sex crime) committed some kind of sexual act, but the jury found him innocent of any sex act, and instead found him guilty of a misdemeanor assault. Apparently the judge got ticked off, and sentenced him to register as a sex offender (which is not punishment). However, the Appellate court said, because residency law is part of registering as a sex offender, and that in Calif. they previously held that their residency law is punishment, then that was a punishment not prescribed for, in a misdemeanor assault. Love the confusion, but unfortunately it actually means, he still has to register but not follow residency laws? Is that what they will force him to do? See decision People -v- Mosley. We may hear more of this case...10-12-2010 California:
When he was 18 years old ___ of Anaheim did something with a 12-year-old girl that may have involved kisses near a residential pool or forceful intercourse in a garage or both, according to court records.
After the June 2003 incident, an Orange County jury refused to find him guilty of committing a lewd act on a child under the age of 14. Instead, they found him guilty only of misdemeanor assault.
Despite that verdict Superior Court Judge David A. Hoffer took the unusual step of punishing him as if he'd been found guilty of a sex crime. Hoffer, a former assistant United States Attorney, made him register publicly as a sexual predator. Registration also prohibited him from living within 2,000 feet of a school or park where children gather.
This week, a California Court of Appeal based in Santa Ana overturned Hoffer's ground-breaking decision.
"The court's imposition of sex offender registration for misdemeanor assault effectively increased the penalty beyond the statutory maximum," wrote Justice Raymond Ikola on behalf of a panel that included Kathleen O'Leary and Eileen Moore. "Discretionary sex offender registration entailing the residency restriction cannot be imposed upon a defendant on the basis of facts not found beyond a reasonable doubt by a jury."
Hoffer's attempt at judicial activism fails. ..Source.. by R. Scott Moxley
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This may be a landmark case for the thousands of sex offenders who took a plea deal rather than go to trial. Because the residency restriction is now a direct collateral consequence of sex offender registration that is actually punishment it should invalidate all of those negotiated plea deals. In California v Picklesimer the Cal Supreme said the trial court did not have the opportunity at the time of conviction or sentencing to conduct a discretionary hearing and it held that trial courts should be given that opportunity should someone be removed from mandatory registration under California v Hofsheier. However, in Padilla v Kentucky the US Supreme Court ruled that deportation is such a catastrophic collateral consequnce of conviction that under the Sixth Amendmant the defendent MUST be advised of the deportation consequences of any plea agreement. In Padilla the US Supreme Court compared deportation to banishment and exclusion and cited the seperation from family and community as extremely onerous consequences and that COurt would be hard pressed to say the residency law for actual US citizens not subject to deportation are suffering any less consequences related to separation issues.
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