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Name: In re E.J. et al.
Case #: S156933
Court: CA Supreme Court
District CalSup
Opinion Date: 02/01/2010

Imposing the stricter residency restrictions of Penal Code section 3003.5 on sex offenders who were subject to lifetime registration before the statute was enacted, but paroled after the date of enactment, does not constitute retroactive application and does not violate ex post facto principles. Four sex offenders subject to lifetime registration for crimes committed before Jessica’s Law (Prop. 83) was passed, but who were released from custody for parole violations after the initiative passed were told by the Department of Corrections that they must comply with the new residency restriction passed as part of that initiative, prohibiting a registered sex offender from living within 2000 feet of a school or a park where kids regularly gather. (Pen. Code, § 3003.5.) They challenged the enforcement of the statute on them, alleging it was impermissible retroactive application and a violation of the ex post facto clause. The court held the presumption against retroactivity was not implicated. “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.” A law is not considered retroactively applied just because some of the facts or conditions necessary for application happened before enactment. These four petitioners were released on parole and moved into non-compliant housing after the effective date. It made no difference that their qualifying crimes earning them the status of life-time registrants occurred before the effective date. The court left open the possibility that if the restriction was imposed on a sex offender released on parole and moved into non-compliant housing before the effective date, this might constitute impermissible retroactive application. As to the related ex post facto claim, two elements must be met for a law to be ex post facto: it must be retrospective (i.e., must apply to events occurring after its enactment), and it must disadvantage the affected offender. Here, because the first element is not satisfied, the claim fails.
Remand is required for evidentiary hearings on whether the parole condition, as applied to each petitioner, is unreasonable, vague or overbroad, and whether it impinges on other constitutional rights, such as the right to travel. Each petitioner alleged the parole condition was unduly burdensome and unconstitutional because he had not been able to secure compliant housing in the city where he lived, either because there was no compliant housing, or it was cost-prohibitive. The court held the “as applied” challenge could not be decided on the facts before it, and that the outcome might be different as to each petitioner because they are not all similarly situated since they were paroled to different cities and counties. The court remanded for an evidentiary hearing to the trial courts in the petitioner’s respective jurisdictions.