Sex offender residency restrictions under Penal Code section 3003.5 do not apply when a defendant convicted of a registerable sex offense is placed on probation. Lynch pleaded guilty to possessing child pornography and was placed on probation. A condition of his probation required that he reside 2000 feet away from parks or schools. He appealed, arguing that the sex offender residency restriction was improperly imposed because it only applies to registered sex offenders who are on parole. Held: Condition stricken. Section 3003.5, subdivision (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.” Subdivision (b)’s plain language appears to apply to all individuals required to register as sex offenders regardless of whether they are on probation or parole. However, subdivision (b) must be read in conjunction with the earlier-enacted subdivision (a). Subdivision (a) provides, “Notwithstanding any other provision of law, when a person is released on parole after having served a term of imprisonment in state prison for any offense for which registration is required pursuant to section 290, that person may not, during the period of parole, reside in any single family dwelling with any other person also required to register . . . .” “The placement of [the residency restrictions] immediately after the previously enacted subdivision (a), which was applicable only to parolees, indicates the [drafter’s intent] to align and limit the ‘any person’ reference in subdivision (b) to the class of persons identified in subdivision (a)parolees.” Because Lynch is a probationer and not a parolee, the condition must be stricken.
The full opinion is on the court’s website here: http://www.courts.ca.gov/opinions/documents/A146704.PDF