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Name: People v. Superior Court (Cheek)
Case #: H049691
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/06/2023

Writ of mandate vacating superior court’s order to release sexually violent predator (SVP) issued because the statute prohibiting placement of certain SVPs near a school does not require the school to have been operating for any particular time, and includes home schools. Over prosecution objection that a proposed SVP residence placement violated Welfare and Institutions Code section 6608.5, subdivision (f), because of its proximity to a school, the trial court ordered a conditional release. It found the school in question is a private home school that did not exist until after the community was notified of Cheek’s pending release. The prosecution petitioned for writ of mandate. Held: Writ of mandate issued. Section 6608.5, subdivision (f) provides that any SVP eligible for conditional release who has a history of sexual conduct with children shall not be placed within one-quarter mile of any qualified public or private school, which provides instruction in kindergarten or any of grades 1 to 12. The language of the statute does not require that the school be planned or in existence before notice of an offender’s placement or that it be a “traditional” school setting. The Court of Appeal concluded home schools are not categorically excluded, noting that the Legislature intended that home schools qualify as private schools for purposes of the state compulsory education law. Here, the residence was operating as school. It had multiple students and complied with the registration requirements for a private school. [Editor’s Note: Justice Lie dissented, disagreeing that the definition of “any public or private school” in the statute includes private homes where the residents elect to home school their children.]