Criminal Appeal

Prop 83 TRO

Earlier today a district judge in the Northern District of California issued a TRO in Doe v. Schwarzenegger, et al., no. 06-cv-06968-JSW, restraining application of the new residency requirements for sex-offender registrants, as enacted as part of Proposition 83. The TRO looks like it was issued by District Judge Jeffrey S. White, with District Judge Susan Ilston signing for him. The TRO does not address the GPS monitoring aspect of Prop. 83, or any other of the many provisions that were part of the initiative.

According to the SF Chronicle article, the drafters of Prop. 83 did not oppose the TRO because they did not intend it to apply to anyone already released from prison:

State Sen. George Runner, R-Lancaster (Los Angeles County), an author of the measure, said today that it was not intended to apply to anyone who has already served a sentence and registered as a sex offender, but only to those who are now in prison or who will be sentenced in the future.

Of course, if the judge is correct that the new burden is punitive, then, under the ex post facto clause, it can only be applied to those who committed their offenses after the new law became effective, which was probably yesterday - 11/8/06, i.e. the day after the election.

Prop. 83, by they way, does a lot more than add burdens for sex offender registrants. It also provides for indeterminate commitment terms for SVPs and makes other changes to sex offense sentencing, including changes to the one strike law.

Man Charged With Accessing Publicly Available Information on Internet. Several weeks ago I posted on the new law that makes it a misdemeanor for a sex offender registrant to access the publicly available information on California's Megan's Law Web site. Well, we now have our first prosecution. According to a recent S.F. Chronicle article, a registrant has been charged with illegally accessing the site.  The defendant is alleged to have used the site to find dates, writing letters to several of the registrants pictured on the site. One of the recipients reported the letters to the police. This use of the site doesn't paint a sympathetic picture for a test case, certainly less sympathetic than a registrant---worried about his own kids---who uses the site to check for other pedophiles in the neighborhood.

Megan's Law Web-Surfing Crime Follow-Up.

Here are some links to posts from other blogs responding to the immediately preceding post:

• Sentencing Law and Policy
• Public Defender Dude
• Orin Kerr at Volokh Conspiracy
• Crime and Federalism

And Marty Kassman (see comment on previous post) might be right when he speculates about the legislature worrying about sex offenders finding each other on the Web site and banding together. It has happened before: see People v. Bittaker, 48 Cal.3d 1046 (1989)

Viewing of Publicly-Accessible Government Web Site Criminalized for Sex Offenders.

A couple weeks ago, Cal. Attorney General Bill Lockyer announced the unveiling of the Megan's Law sex offender locator site.

AB 488, as the AG notes, authorized putting photos, home addresses, and partial criminal histories on the Web for the more serious sex offenders. (It was signed by the governor on Sept. 24.) The merits of posting all of this information is debatable. Vigilante-ism comes to mind. The proponents of the bill pointed to an AG report that, as of 2000, "since Megan's Law has been implemented in California, 'there have only been two minor 'vigilante' acts against sex offenders resulting from Megan's Law disclosures reported to the Department of Justice by law enforcement." Of course, now that the information is freely available on the Web and the vigilante doesn't have to call a 900-number or visit the police department, that may change. Anyway, that's not the  point of this post. Read on.

AB 488, did other things, including creating new crimes related to misuse of the sex-offender locator Web site. One of those new crimes is subdivision (i) of section 290.46 of the Penal Code, which makes it a misdemeanor for any sex offender registrant to access the Megan's Law Web site:

(i) Any person who is required to register pursuant to Section 290 who enters the Web site is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.

Notice that the new crime applies to all sex offender registrants, not just those on the Web site. That means those convicted of such minor crimes as misdemeanor indecent exposure or sexual battery can't access the Web site, even if they committed their crimes many years ago and have never re-offended.

So what's the problem with the new crime? 1. Sex offenders, believe it or not, are people too and they might have children and might want to see where the sexual predators live in their neighborhood. (I realize that might not be sympathy for this position, but think about the teenaged flasher, now grown up, with a clean adult record, kids of his own, etc.) 2. Registrants might want to know whether they are actually on the Web site (I'm assuming the DOJ duty to notify won't be perfect), so they can exercise the necessary caution to protect themselves from vigilantes. 3. Registrants might want to know whether the DOJ has accurate information about them. There's hardly an easier way of checking if their registration is current than looking on the Web. 4. The bill allows registrants to apply to be removed from the Web site. Shouldn't they be able to confirm that they are on the site and see what the site looks like before they apply to be removed?

5. Last, but not least: This is government information which the government is making available to the general public. The government needs a real good reason if it's going to bar one class of citizens from viewing publicly available information. But the value of this new crime is lost on me. Are we worried about sex-offenders who also happen to be hackers are going to delete their entries? They can do that from the Web site and it's already a crime to hack the AG's server. Are we worried about sex offenders learning they're on the list? The bill requires that the DOJ notify sex offenders of their inclusion on the Web site. Do we want sex offenders to be unprepared for vigilantes? I hope not.

Any thoughts from First Amendment experts?

(Note: An earlier version of the bill actually required that "A person visiting the Web site shall be required to enter his or her name and indicate that he or she is not a registered sex offender ....")

 

Cal. Supremes: Forgetting To Register is Willful Failure to Register. People v. Barker, no. S115438 (Cal.SupremeCourt, Aug. 30, 2004).

Justice Brown, writing for the six-judge majority, saw some "superficial" appeal to the argument that forgetting to register is not a willful failure to register, but concluded the legislature did not intend that result:

Admittedly, the argument that a person cannot be said to know something if he or she has forgotten it, for whatever reason, does have a superficial plausibility. However, we agree with Cox and the majority below: It is simply inconceivable the Legislature intended just forgetting to be a sufficient excuse for failing to comply with section 290’s registration requirements.

The majority left one out: "we express no opinion as to whether the instruction would be erroneous where a defendant’s forgetfulness allegedly arose from an acute psychological condition, or a chronic deficit of memory or intelligence."

Justice Kennard dissented.

Denial of Motion to Strike (Cal. Pen. Code sec. 1385) Prior Strike Allegation is Reviewed for Abuse of Discretion. People v. Carmony, no. S115090 (Cal.Supreme Court, July 8, 2004) (author: Brown; unanimous.)

Note: Justice Moreno (with Justice Chin concurring) wrote a short separate concurring opinion emphasizing that the Court's decision that there was no abuse of discretion in the denial of the motion to strike in this case did not preclude a finding, upon remand, that the sentence violated the 8th Amendment. Justice Moreno was clearly troubled by the life sentence in this case:

it is difficult to escape the conclusion that the electorate that enacted the Three Strikes law did not intend to impose a life sentence on someone whose last offense was a technical violation of the sex offender registration statute --- failing to register within five days of his birthday although he had registered a month earlier and had not changed his address since then --- that posed no danger to the public. This case joins the growing ranks of cases in which life sentences were imposed after the commission of minor felonies.

Sex Offender Registration. People v. Poslof, no. E033503 (Cal.Ct.App. 4th Dist., Div. 2, June 7, 2004)

(1) rejected argument that CALJIC 1.20 improperly removes willfulness element of PC 290 violation by providing that a failure to register is willful when it was done with general knowledge of the registration requirement; (2) it was error (although harmless) to give the general intent jury instruction (CALJIC 3.30); (3) registration applies when defendant establishes a new residence and defendant must register within 5 days of establishing that residence, even if he does not stay in that location for 5 consecutive days; (4) the evidence was sufficient that the defendant had knowledge that he was required to register multiple residences; (5) three strikes sentence for failure to register was not cruel and unusual and trial court did not abuse its discretion in denying motion to strike three strikes allegation.

Sex Offense Registration is Not Punishment for 8th Amendment Purposes. So said the California Supreme Court yesterday in In re Alva, no. S098928. This is no surprise as the Court has already held that registration is not punishment for purposes of the state and federal ex post facto clauses. The Court's unanimous opinion in Alva was authored by Justice Baxter.

Cal. Supremes To Review Whether There's a Catchall Category of Offenses for Juvenile Sex Offender Registration. In re Derrick B., S124205. (F043067; 116 Cal.App.4th 1352.

According to the Court's weekly summary the question presented is: Does Penal Code section 290, subdivision (a)(2)(E), authorize the juvenile court to order a ward to register as a sex offender for committing an offense not listed in section 290, subdivision (d)(1), or does subdivision (d) of section 290 set forth the exclusive grounds upon which a juvenile court ward can be ordered to register as a sex offender under section 290?

Read my post on the court of appeal opinion here and read that opinion here.
In the court of appeal, the minor was represented by Dale Juan Blea of Oakhurst and Deputy A.G. Janet Neeley represented the state.

Cal. Supremes To Decide Whether Oral Cop is Different. Today, the Court granted review of the Sixth Appellate District's decision in People v. Hofsheier, no. H026217 (Cal.Ct.App. (6th Dist.), Apr. 1, 2004), holding that imposing a sex offender registration requirement for consensual oral copulation with a minor but not for sexual intercourse with a minor violates equal protection. (This case involved a 22-year-old defendant and 16-year-old minor.) Read my original post on Hofsheier here. This is not much of a surprise. Just two weeks ago, the Third Appellate District rejected the same equal protection claim in People v. Alcala.  Read my post on Alcala here.

Paul Couenhoven of the Sixth District Appellate Program represented Hofsheier in the Court of Appeal; Deputy A.G. John H. Deist represented the state. View the docket in People v. Hofsheier, no. S124636, here.

Update: The Court, today, also granted review in In re Martin M., no. S123963 (6th Dist. no. H025631), deferring briefing pending a decision in Hofsheier.

Oral Cop is Different. People v. Alcala, no. C037000 (Cal.Ct.App. (3d Dist.) May 27, 2004).

Last Month, the Sixth Appellate District held that imposing a sex offender registration requirement for consensual oral copulation with a minor but not for sexual intercourse with a minor violates equal protection. (Read my post on People v. Hofsheier, no. H026217 (Cal.Ct.App. (6th Dist.), Apr. 1, 2004) here. Today, without mentioning Hofsheier, the Third Appellate District rejected the same argument, concluding that "there is a plausible reason why the Legislature has applied the mandatory sex offender registration requirement to the crime of oral copulation with a minor, but made it optional as to the crime of unlawful sexual intercourse with a minor."  Applying a rational basis test (no fundamental liberty at stake here), the court identified SEVEN "plausible" reasons for the distinction:

(1) oral copulation does not pose the same risks as sexual intercourse, e.g., pregnancy; (2) oral copulation is easier to commit than sexual intercourse since (a) oral copulation can be accomplished more surreptitiously, and (b) victims are less likely to resist oral copulation than sexual intercourse because oral copulation is not as physically painful to a minor and it was more widely acceptable among youth in the culture of the 1980’s; (3) because oral copulation does not carry the same risks as sexual intercourse, is less physically painful to a minor, and is more widely acceptable among youth in our culture, the minor victim is less likely to report an act of oral copulation than to report an act of sexual intercourse; (4) absent a complaint by the victim, oral copulation is more difficult to detect by a third person than is sexual intercourse because oral copulation never results in pregnancy and ordinarily does not result in physical trauma; (5) more minors are at risk of being the victims of oral copulation than of sexual intercourse because an adult male can commit oral copulation with boys as well as girls; (6) for all of these reasons, there is a wider “victim base” for oral copulation with a minor than for sexual intercourse with a minor; and (7) there is particular need for the state to prevent recurring oral copulation with minors because it often is used to “groom” the victims for other sex acts by making them less likely to resist those acts than if they had never been subjected to acts of oral copulation; thus, it creates a wider victim base for other sexual acts with minors.

Despite these seven plausible reasons why oral cop. offenders should register while those engaging in intercourse should not, the Court recognized the stupidity of all this: "the statutory scheme would make more sense, would be more just, and would result in fewer costly legal challenges, if the trial court has discretion whether to impose the sex offender registration requirement for oral copulation with a minor, like the trial court has for unlawful sexual intercourse with a minor."

And Justice Morrison wrote a separate concurrence to emphasize why this scheme is nonsense:

Forcing a defendant who commits oral copulation on a child to register while no such requirement exists for a defendant who has intercourse with a child seems a vestige of the legal view that oral copulation is unnatural under any circumstance. That time has passed. Except where force is used or a participant is a prisoner, the Legislature decriminalized adult oral copulation in 1975. (See People v. Collins (1978) 21 Cal.3d 208, 211.) In my view unlawful sexual intercourse with a minor is far more dangerous and has more serious consequences than oral copulation with a minor. I urge the Legislature to address the disparate treatment of these two crimes.

A petition for review was filed in the Sixth District case (Hofsheier) on May 7, 2004. (No. S124636.)

Habeas Relief for Sex Offender Registrant
Bartlett v. Alameida, no. 03-55936 (9th Cir., May 10, 2004).

Holding: State court decision holding that knowledge of duty to register is not required for conviction under California Penal Code section 290 was an unreasonable determination of U.S. Supreme Court authority. (The state appellate court decision to the contrary was issued shortly prior to the state supreme court's decision in People v. Garcia, 25 Cal. 4th 744, 752 (2001), holding that such knowledge is required, as a matter of due process.) The Ninth Circuit found the instructional error was prejudicial because the judge repeatedly told the jury that knowledge of the duty to register was not an element and because jury asked for elaboration on the meaning of "willfully" and asked to see the petitioner's mandatory release card to see whether it had instructions on it.

Panel: Otto R. Skopil, Jr., John T. Noonan, and Marsha S. Berzon (per curiam)

No Dual Punishment and Limited Dual Prosecutions in Separate Counties for Sex Offender Registrant Who Moves From One County to Another Without Notifying Authorities in Either County. People v. Britt, no. S115377 (Cal. Supreme Court , Apr. 19, 2004): "the person may not be separately punished for the two failures to notify. Moreover, although he may be charged with both offenses in either county, when, as here, the prosecution knows or should know of both offenses, he may be prosecuted for them only once."

Cal. Supreme Court Opinion in (Another) Sex Offender Registration Case Today. At 10 a.m. today, the California Supreme Court will issue its opinion in People v. Britt, no. S115377.

Question presented: Can a registered sex offender be prosecuted in one county for failing to notify law enforcement agencies of his change of address when he moves from that county and also be prosecuted separately in the county of his new residence for failing to register there, or are two separate prosecutions barred under these circumstances by Penal Code section 654?

The description of the question presented is taken from the court's notice of forthcoming filing.

Note: The problem of moving and transient sex offender registrants presents numerous issues which the courts are sorting out. On March 29, in People v. Smith, S108291, the California Supreme Court held that "the trial court erred in instructing the jury that a registrant who mails a change-of-address notice within the statutory five-day period nevertheless violates section 290 if the police do not actually receive the notice." The court also held that California retains jurisdiction over registrants even after they move out-of-state: "Section 290, subdivision (f)(1), gives the registrant five working days after changing his residence in which to inform the police of his move; here the fiveday period elapsed when defendant was in Colorado. But that fact does not bar application of California penal law."

"Some Years From Now, Law Professors and Law Students Will Read This Case and Will Ask, 'What On Earth Were They Thinking?'"
Case: People v. Meeks, no. C036854 (Cal.Ct.App. (3d Dist.) Apr. 13, 2004) (partially published).

Majority: Multiple convictions are permitted for failure to register within 5 days of changing addresses and for failure to register within 5 days of birthday, even though offenses are continuing and one violation may not be complete when the other violation commences. For same reason, section 654 of the Penal Code does not bar multiple punishment for overlapping or contemporaneous violations of section 290. Sentence of 25 years to life for failing to register following change of address was not cruel and unusual punishment under the state and federal constitutions.

Dissent: Justice Richard Sims's passionate dissent is worth quoting at length:

In my view, defendant’s sentence of 25 years to life on count 2, plus a two-year consecutive sentence on count 3, constitutes cruel or unusual punishment under the California Constitution.

* * *

In considering the nature of the offender, the evidence on this record (including the probation report) is uncontradicted that defendant was suffering from AIDS, that he became homeless, that he was living on the street, and that eventually he moved in with his sister-in-law for several months. The reason that defendant tendered for failing to register--that he was dying of AIDS and was consumed by it--is uncontradicted on this record and is entirely plausible.

This is a pathetic case. This is not a case in which defendant has done anything to justify imposition of a term of 25 years to life in state prison, let alone the draconian two-year consecutive term (on top of the 25-year-to-life term) for failing to register on his birthday.

It is no answer to say that we are protecting society from contamination by one with AIDS. We do not, should not, and constitutionally cannot incarcerate persons in state prison because they have a disease like AIDS. (Robinson v. California (1962) 370 U.S. 660, 666-667 [statute making narcotics addiction a criminal offense violated cruel and unusual punishment clause].)

What are we doing sending this dying man to state prison for 27 years to life? What has become of our society? Why has “compassion” become a dirty word in the law? I think that, some years from now, law professors and law students will read this case and will ask, “What on earth were they thinking?”

Registration Requirement for Oral Cop On Minor Violates Equal Protection Clause. (Or, What a Difference a Judge Makes)
Case: People v. Hofsheier, no. H026217 (Cal.Ct.App. (6th Dist.), Apr. 1, 2004)
Proceeding: Direct criminal appeal following guilty plea.

Holding: Imposing a sex offender registration requirement for consensual oral copulation with a minor but not for sexual intercourse with a minor violates equal protection.  (This case involved a 22-year-old defendant and 16-year-old minor.)

In so ruling, the Sixth District disagreed with its own opinion in People v. Jones (2002) 101 Cal.App.4th 220. What changed? The judicial lineup. In Jones,  Justice Patricia Bamattre-Manoukian wrote the majority opinion, joined by (Now Presiding) Justice Conrad Rushing.  Justice Nathan D. Mihara dissented in Jones. In the current case (Horsheier), Mihara authored the majority opinion (joined by Justice William M. Wunderlich) and Justice Bamattre-Manoukian dissented.

In addition to changing lineups on these cases, there's another reason this issue won't go away. The majority's willingness to find that no rational basis for the disparate treatment for oral copulation and intercourse was based on the fact that the prosecutor and the trial court agreed the distinction was irrational:

Because defendant’s assertion that there was no rational basis for the distinction was conceded below, and no evidence to the contrary has been produced, we must conclude in this case that the legislative classification lacked a rational basis.

Writing for the majority, Justice Mihara noted that "this issue has now reached this court three times, but no one has yet produced any statistics regarding the relative rates of recidivism. We publish this case to encourage the final resolution of this issue in some future case by the production of such statistical evidence in the trial court." Theoretically, differing rates of recidivisim for the two classes offenders could justify the distinction. (It's also possible that Penal Code section 290 has been amended so many times and is so long and so complicated that it's simply just a mess.)

Sex Offender Registrant's Change of Address Complies With Section 290 if Mailed Within Five Days of Move
Case: People v. Smith, S108291 (Cal. Supreme Court)
Proceeding: direct criminal appeal following jury trial

Holding: The main holding of the case is that "the trial court erred in instructing the jury that a registrant who mails a change-of-address notice within the statutory five-day period nevertheless violates section 290 if the police do not actually receive the notice." The court also held that California retains jurisdiction over registrants even after they move out-of-state: "Section 290, subdivision (f)(1), gives the registrant five working days after changing his residence in which to inform the police of his move; here the fiveday period elapsed when defendant was in Colorado. But that fact does not bar application of California penal law."

Authoring Judge: Justice Joyce Kennard.

Opinion was unanimous.

Catchall Sex Offender Registration Provision Applies to Juveniles. The California Court of Appeal (5th Dist.), yesterday, in In re Derrick B., no. F043067, affirmed the trial court's order that the minor, who was convicted of sexual battery, register as a sex offender, despite the fact that the offense was not among the registerable offenses expressly listed in the subdvision (d) of section 290 of the Cal. Penal Code, which provides for registration by minors. The court of appeal held that subdivision (a)(2)(E) of section 290, which gives judges discretion to order defendants convicted of any offense to register as a sex offender where the offense was committed for sexual gratification or if it was the result of a sexual compulsion, applies to minors.

Alaska Sex Offender Registration Law Survives Procedural and Substantive Due Process Challenges. In Doe v. Tandeske, no. 99-35845, the Ninth Circuit, somewhat reluctantly, rejected due process challenges to Alaska's sex offender registration scheme.

As for procedural due process, the court noted that "Alaska’s sex offender statute bases the registration and notification requirements on the sole fact of plaintiffs’ convictions. Accordingly, bound by Connecticut Department of Public Safety [v. Doe, 538
U.S. 1 (2003)], we hold that Alaska’s sex offender registration law does not deprive the Does of procedural due process."

As for substantive due process, the court noted that the Supreme Court, in Smith v. Doe, 538 U.S. 84 (2003) (a prior opinion in the same case rejecting the 9th Circuit's holding that the ex post facto clause applied to the same law) "has already determined in Smith, the statute’s provisions serve a legitimate nonpunitive purpose of public safety, which is advanced by alerting the public to the risk of sex offenders in their community. [Citation.] Moreover, the Court held, the broad categories of offenses differentiated in the Act and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.” [Internal quotation marks omitted.]

Failure to Register Conviction and 25-Years-To-Life Sentence Upheld. In People v. Annin, no. A099237, the California Court of Appeal (1st Dist., Div. 1) rejected a series of arguments challenging the defendant's conviction for violating the California sex offender registration law (section 290 of the Penal Code).

The court also rejected the appellant's argument that his sentence of 25 years to life was cruel and unusual. Such excessive sentences are not uncommon in San Mateo County for registration violations. Although not all are upheld. (See examples here and here.)

Review Granted - Sex Offender Registration (People v. Sorden (1st Dist., Div. 2))

The California Supreme Court has granted review of an unpublished California Court of Appeal (1st Dist., Div. 2) decision holding that "We agree with appellant that genuinely forgetting to register negates the element of willfulness required in section 290, and therefore, the trial court erred in refusing to admit testimony that appellant failed to remember to register." Click here to read the unpublished Court of Appeal opinion. I have no word yet on the precise question to be reviewed.