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Name: People v. Mosley
Case #: G038379
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 11/19/2008
Subsequent History: rev. granted 3/18/09 (S169411)

Because the residency restriction in Proposition 83 increases the penalty for the underlying offense beyond the statutory maximum, the facts supporting discretionary sex offender registration must be found by a jury beyond a reasonable doubt. A jury acquitted appellant of the charged sex offense, and convicted him of misdemeanor assault. At sentencing, the court made its own findings that the assault was driven by sexual compulsion or committed for sexual gratification, and imposed discretionary sex offender registration under former Penal Code section 290, subdivision (b)(3), now section 290.006. Appellant argued on appeal that the registration requirement amounted to punishment and violated his right to a jury trial as construed in Cunningham. The Court of Appeal evaluated whether the changes to sex offender registration enacted by Proposition 83, otherwise known as Jessica’s Law, constitute punishment due to their punitive effect, and concluded they did. “The residency restriction – the exclusion of registered sex offenders from residing near schools and parks – is sufficiently close to banishment, property deprivation and a probation condition to be deemed traditional punishment.” Because of its punitive nature, imposition by the court increased the penalty for a non-sex offense beyond the statutory maximum allowed by the jury verdict alone. So, the facts necessary to impose it needed to be found true by a jury beyond a reasonable doubt. Since that did not happen here, the court struck the registration requirement.