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Right to Jury Trial - Sex Offender Registration

Does the discretionary imposition of lifetime sex offender registration, which includes residency restrictions that prohibit registered sex offenders from living "within 2000 feet of any public or private school, or park where children regularly gather" (Pen. Code, 3003.5, subd. (b)), increase the "penalty" for the offense within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466, and require that the facts supporting the trial court's imposition of the registration requirement be found true by a jury beyond a reasonable doubt?

On 3/2/11 the court added two additional issues:

Does Penal Code section 3003.5, subdivision (b), validly create a misdemeanor offense subject to violation by all persons required to register for life pursuant to Penal Code section 290 et seq., regardless of their parole status?

If Penal Code section 3003.5, subdivision (b), is not separately enforceable as a misdemeanor offense, does that section nevertheless operate to establish the residency restrictions contained therein as a valid condition of sex offender registration pursuant to Penal Code section 290 et seq.?

Held: Discretionary order, supported by facts found by the court, that requires defendant to register as a sex offender and triggers the residency restrictions of Jessica's Law (Prop. 83) is not invalid under Apprendi. Mosley was convicted of misdemeanor simple assault. Although the jury acquitted Mosley of a charged sex offense, the court exercised its discretion under Penal Code section 290.006 and ordered Mosley to register as a sex offender after finding that his assault was sexually motivated and that he posed a risk of reoffending. Mosley appealed, arguing that Apprendi v. New Jersey (2000) 530 U.S. 466 requires that a jury, not a judge, make the findings required by section 290.006 because the residency restrictions set forth in Jessica's Law triggered by the registration requirement increased the penalty for his assault conviction beyond the statutory maximum. The Court of Appeal concluded that the residency restrictions were a penalty and struck the registration requirement. The California Supreme Court granted the People's petition for review. Held: Reversed. Under Oregon v. Ice (2009) 555 U.S. 160, "Apprendi has no application to sentencing decisions in which juries played no factfinding role at common law." Decisions regarding sex offender registration and residency requirements have not historically been entrusted to juries. Furthermore, the residency restrictions are not a penalty under the test set forth in Smith v. Doe (2003) 538 U.S. 84. They serve to promote public safety, not to punish sex offenders. Additionally, even if the residency restrictions are punitive and could not constitutionally be applied to a defendant, they would not bar the court from exercising its discretion to impose a registration order, which is not subject to Apprendi. Accordingly, the Court of Appeal erred by striking the registration requirement altogether. [Editor's Note: In a dissenting and concurring opinion joined by Justice Werdegar, Justice Liu concluded that Mosley "stated a valid Apprendi claim because the residency restriction is a penalty that exceeds what the jury's verdict in this case permits."] (People v. Mosley (2015) 60 Cal.4th 1044 (S187965).) This case was decided on 3/2/2015.

Updated: 3/2/2015

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