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Name: People v. Mosley
Case #: G038379
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 09/29/2010
Subsequent History: rev. granted 1/26/11 (S187965)

Imposition of residency restrictions, now part of the Penal Code section 290 discretionary registration requirements, increases the maximum penalty for an offense beyond the statutory maximum within the meaning of Apprendi. Appellant was tried by jury for lewd acts upon a child (Pen. Code, § 288, subd. (a)). The jury acquitted him of the sex offenses but found appellant guilty of misdemeanor assault. At sentencing, the trial court found the offense to be sexually motivated and ordered discretionary sex-offender registration. In Mosley I, the Court of Appeal held the facts supporting imposition of discretionary registration must be tried by jury and reversed the judgment. The Supreme Court granted review and remanded the matter, ordering the Court of Appeal to reconsider its opinion in light of In re E.J. (2010) 47 Cal.4th 1258, which held the residency restrictions in Jessica’s Law (Prop. 83) was properly applied prospectively to parolees. On remand, the Court of Appeal acknowledged that the registration requirements of section 290 do not constitute punishment in excess of the statutory maximum. But, imposition of the residency restrictions now part of section 290 (barring registered sex offenders from living within 2,000 feet of a school or park where children gather) via 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.” Applying the “intent/effect” test to determine whether a statutory provision is “punitive” the Court of Appeal found it a “close case” whether the intent of the law was punishment, “concluding by a narrow margin that the residency requirement restriction lacks a punitive intent.” However, after reviewing the “punitive effect” factors set forth in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, the court found the residency restrictions added to section 290 by Jessica’s Law have a punitive effect. The Supreme Court’s opinion in In re E.J. has no effect on this analysis because the Court did not consider the general issue of whether the residency restrictions constitute punishment or whether they increase the punishment for the offense beyond the statutory maximum.