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Landry v. Harris
Landry v. Harris
01/31/13






Landry v












Landry v. Harris

















Filed 1/25/13
Landry v. Harris CA4/1

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115>.





COURT OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION ONE



STATE OF CALIFORNIA






>






WILLIAM LANDRY



Plaintiff and Appellant,



v.



KAMALA D.
HARRIS, as Attorney General,



Defendant and Respondent.




D061123







(Super. Ct. No.
MCR11032)




APPEAL
from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Michael T. Smyth, Judge. Affirmed as modified.



In
1978, a jury convicted William Landry of unlawful
sexual intercourse
with a person under the age of 18 (Pen. Code,href="#_ftn1" name="_ftnref1" title="">[1] §
261.5; count 1), and unlawful oral copulation with a person under the age of 18
(§ 288a, subd. (b)(1); count 2). As a
result, Landry was required to register as a sex offender pursuant to the
California Sex Offender Registration Act.
(§ 290.) In 2011, the Superior
Court granted Landry relief from mandatory registration under >People v. Hofsheier (2006) 37 Cal.4th
1185 (Hofsheier), but ordered
discretionary registration pursuant to section 290.006.

Landry
appeals from this order, contending discretionary registration constitutes
punishment within the meaning of Apprendi
v.
New Jersey
(2000) 530 U.S. 466 (Apprendi) and the href="http://www.mcmillanlaw.com/">ex post facto clauses of the United States and California Constitutions.
Landry asserts this punitive effect arises from (1) the lifetime
residency restriction applicable to sex offender registrants (§
3003.5, subd. (b)) and (2) the collective effect of post-1978 amendments to the
sex offender registration laws.

Specifically,
Landry argues the lifetime residency restriction is punitive because it
completely excludes registrants from living in densely populated communities of
San Diego County. He asserts the restriction
violates Apprendi because
discretionary registration was imposed as a result of the judge, not a jury,
finding he committed the 1978 offenses for sexual gratification. Additionally, Landry argues the post-1978
amendments to the sex offender registration laws collectively result in public
stigmatization, shame, diminished privacy, and ostracization, all stemming from
the trial court factual findings for purposes of imposing discretionary
registration, in violation of Apprendi and
the ex post facto clauses.

The
Attorney General concedes that the residency restriction does not apply to
Landry. Without deciding the issue, we
accept that concession and modify the trial court's order to add a provision
stating that Landry is not subject to the section 3003.5, subdivision (b)
residency restriction. We disagree with
Landry's remaining contentions and otherwise affirm the order for discretionary
registration under section 290.006. >

FACTS

The
underlying facts concerning the offenses are taken from our prior opinion in
the matter. (People v. Landry (Sept. 18, 1979, 4 Crim. 11056) [nonpub.
opn.].) In April and May 1977, Landry
engaged in oral copulation and sexual intercourse on several occasions with his
17-year-old foster daughter, T.H. T.H.
testified she had orally copulated Landry at his request since she was six
years old. In March 1978, Landry offered
T.H. five thousand dollars to drop the charges.
In May 1978, a jury convicted Landry of unlawful sexual intercourse and
oral copulation with a person under the age of 18, and he was sentenced to
three years of probation and required to register as a sex offender pursuant to
section 290.

In
2011, the superior court granted Landry Hofsheier
relief from mandatory registration. At a
later hearing on the issue of whether Landry should be subject to discretionary
registration, the court found Landry had committed the 1978 offenses for sexual
gratification and ordered discretionary registration pursuant to section
290.006. Landry filed this appeal.

DISCUSSION

I. Legal
Principles


Our
review is assisted by a brief overview of Apprendi
and the ex post facto clauses, the two principles on which Landry bases his
claims.

A. >Apprendi

Under >Apprendi, "[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." (>Apprendi, supra, 530 U.S. at p. 490.)
The rule ensures "that the judge's authority to sentence derives
wholly from the jury's verdict" (Blakely
v. Washington
(2004) 542 U.S. 296, 306), and thus proscribes legislative
schemes that in effect reclassify elements of an offense as sentencing factors
to allow a judge to impose a penalty beyond the statutory maximum without a
jury finding or admission by the defendant that the factors exist. (Blakely,
542 U.S. at pp. 303-307.) To trigger the
Apprendi jury trial requirement, the
consequence imposed on the defendant must (1) be punitive (People v. Picklesimer
(2010) 48 Cal.4th 330, 344; People v.
Presley
(2007) 156 Cal.App.4th 1027, 1031-1032
(Presley)), and (2) exceed the
maximum punishment for the offense prescribed by the statute. (Cunningham
v.
California
(2007) 549 U.S. 270, 274-275, 289-293.)

B. >The Ex Post Facto Clauses

Article
I, section 10, clause 1 of the federal Constitution states, in pertinent part:
"No state shall . . . pass any . . . ex post facto law. . . ." Article I, section 9 of the California
Constitution similarly states an "ex post facto law . . . may not be
passed." The California
provision is analyzed in the same manner as its federal counterpart. (People v. Grant (1999) 20 Cal.4th
150, 158.) The ex post facto clauses of
the federal and state Constitutions prohibit enactment of laws that
"retroactively alter the definition of crimes or increase the punishment
for criminal acts." (Collins v.
Youngblood
(1990) 497 U.S. 37, 43; see also Grant, at p. 158.)

To
determine whether a particular law or statutory scheme is punishment for
purposes of the Sixth Amendment and ex
post facto analysis, we apply the two-part test of Smith v. Doe (2003)
538 U.S. 84. (See Presley, supra, 156
Cal.App.4th at p. 1032.) Under >Smith, a court first determines whether
the Legislature intended to impose punishment.
"If the intention of the legislature was to impose punishment, that
ends the inquiry." (Smith, at p. 92.) However, if the court determines the
Legislature intended to enact "a regulatory scheme that is civil and
nonpunitive," then we must determine whether the statutory scheme is
" ' "so punitive either in purpose or effect as to negate [the
State's] intention" to deem it "civil." ' " (Ibid.) To analyze the effects
of the statute, we consider several factors set out in Kennedy v.
Mendoza-Martinez
(1963) 372 U.S.
144. (Smith, at p. 97.) These factors, which are " 'neither
exhaustive nor dispositive,' " include whether the provision imposes what
has been viewed traditionally as punishment, creates an affirmative disability
or restraint, promotes the traditional aims of punishment, has a rational
connection to a nonpunitive purpose, or is excessive with respect to the
nonpunitive purpose. (Ibid; Presley, at p. 1032.)

II. Discretionary
Sex Offender Registration, >Standing Alone, is Not Punitive

The
threshold question for both Landry's Apprendi
and ex post facto claims is whether he was punished, either by the actual
imposition of the discretionary registration order, or by the effect of the
order.

The
lifetime sex offender registration requirement imposed under section 290 is
mandatory for a defendant convicted of a statutorily-specified sex offense (§ 290,
subd. (c)), and is discretionary for a defendant convicted of any other
offense. (§ 290.006.) To impose the discretionary registration
requirement, the trial court must find that the defendant "committed the
offense as a result of sexual compulsion or for purposes of sexual
gratification." (§
290.006.href="#_ftn2" name="_ftnref2" title="">[2])

Landry
seems to acknowledge that it is now established that the discretionary sex
offender registration requirement, at least apart from the section 3003.5
residency restriction, does not give rise to Apprendi or ex post facto violations because it does not impose a
punitive consequence. (>People v. Castellanos (1999) 21 Cal.4th
785, 795-796 [no ex post facto violation due to nonpunitive nature of
registration requirement]; In re Alva
(2004) 33 Cal.4th 254, 260-262 [no cruel and unusual punishment for misdemeanor
sex offense due to nonpunitive nature of registration requirement]; >People v. Marchand (2002) 98 Cal.App.4th
1056, 1061 [no Apprendi violation due
to nonpunitive nature of registration requirement]; Presley, supra, 156
Cal.App.4th at pp. 1033-1035 [no Sixth Amendment violation due to nonpunitive
nature of registration requirement]; see generally People v. Picklesimer, supra,
48 Cal.4th at pp. 343-344 [sex offender registration is not considered a form
of punishment under the state or federal Constitution]; Hofsheier, supra, 37
Cal.4th at p. 1197.) We turn to Landry's
more specific challenge, which is whether particular provisions of
discretionary registration separately or cumulatively render discretionary
registration punitive in effect.

III. Section
3003.5's
Residency Restriction

The
Sexual Predator Punishment and Control Act (hereafter Jessica's Law), which
California voters enacted into law on November 7, 2006, provides: "Notwithstanding any other provision of
law, it is unlawful for any person for whom registration is required pursuant
to Section 290, to reside within 2000 feet of any public or private school, or park
where children regularly gather." (§
3003.5, subd. (b).) The statute also
allows local governments to enact ordinances that impose additional residency
restrictions on persons required to register as sex offenders. (§ 3003.5, subd. (c).)

In> In re E.J. (2010) 47 Cal.4th 1258,
1278-1280 (E.J.), the California
Supreme Court concluded that, as to the paroled registered sex offender
petitioners involved in that case, section 3003.5's residency restriction does
not constitute an ex post facto violation because it was not imposed
retroactively on the petitioners as additional punishment for the sex offense,
but only prospectively in response to the offenders' conduct during the parole
period: "Although they fall under
the new restrictions by virtue of their status as registered sex
offenders who have been released on parole, they are not being 'additionally
punished' for commission of the original sex offenses that gave rise to that
status. Rather, petitioners are being
subjected to new restrictions on where they may reside while on their current
parole
—restrictions clearly intended to operate and protect the public in
the present
, not to serve
as additional punishment for past crimes."
(E.J., at p. 1278.) The court explained, "[T]he new
residency restrictions apply to events occurring after their effective
date—petitioners' acts of taking up residency in noncompliant housing upon
their release from custody on parole after the statute's effective date. It follows that section 3003.5[, subdivision]
(b) is not an ex post facto law if applied to such conduct occurring after its
effective date because it does not additionally punish for the sex offense
conviction or convictions that originally gave rise to the parolee's status as
a lifetime registrant under section 290."
(E.J., at p. 1280.)

Relying
on E.J., supra, 47 Cal.4th 1258, the Attorney General maintains that
because Landry is not on parole, the residency restriction does not apply to
him and cannot violate any of his constitutional
rights
. But the issue of whether the
statute applies to all sex offender registrants, regardless of parole or
probation status, date of conviction, or date of release from incarceration,
was left undecided by E.J. (See E.J.,
at p. 1271,

fn. 5 ["The further question whether
section 3003.5 [, subdivision] (b) also created a separate new misdemeanor
offense applicable to all sex offenders subject to the registration requirement
of section 290, irrespective of their parole status, is not before

us . . . ."]; accord, >E.J., at p. 1285 (conc. opn. of Werdegar
J.) ["We thus also have no occasion
here to address whether the 2,000-foot residency limit might apply to those who
completed their paroles before the effective date of [Jessica's law] . . . ; to
those whose parole period began before, but is scheduled to terminate after,
[the effective date of Jessica's Law] . . . ; or even to the thousands of
persons subject to sex offender registration who, for whatever reason, are not
currently on parole."].) These
questions, as well as the specific question of whether section 3003.5's
residency restriction constitutes punishment for Apprendi purposes, are currently pending before our Supreme
Court. (See People v. Mosley (2010) 188 Cal.App.4th 1090, review granted Jan.
26, 2011, S187965; see also In re J.L. (2010) 190 Cal.App.4th 1394,
review granted March 2, 2011, S189721; In re S.W. (December 20, 2010) [2010 Cal. LEXIS 13417], review granted
Jan. 26, 2011, S187897 [residency restriction is not punitive and hence not
subject to Apprendi rule].)

Without
deciding the point, we accept the Attorney General's concession that the
residency restriction only applies to parolees and thus Landry is not subject
to the requirement. (See >In re James F. (2008) 42 Cal.4th 901, 911 [accepting party's concession without deciding
underlying issue].) We do not address
Landry's collateral contention that various specified local ordinances suffer
from the same Apprendi and ex post
facto defects, in part based on the Attorney General's concession, and in part
because, as Landry admits, they are not at issue in the case. We only reach the question of whether the
collective effect of the sex offender registration amendments constitute
punishment violating Apprendi and the
ex post facto clauses when imposed by
a judge through a discretionary registration order.

IV. The
Collective Effect of the Sex Offender Registration Amendments is Not Punitive


A. >General Overview of the Sex Offender
Registration Amendments

Since
Landry's 1978 conviction, the sex offender registration laws have been amended
to enhance registration requirements, create a public notification and inquiry
system, require DNA collection and sampling, and impose residency restrictions
as well as GPS monitoring.

Landry
points to amendments to section 290 in 2003, requiring a sex offender to
reregister within five working days of changing his or her residence or
establishing a second residence (former § 290, subds. (a)(1)(A),(B)), and
personally inform the local law enforcement agency in writing within five
working days of changing residence within or outside of California. (§ 290.013; former § 290, subd. (f)(1),
Stats. 2003, ch. 634, §1.3.) He also
mentions a 2005 amendment to section 290 imposing a duty to register on
"[a]ny person required to register pursuant to any provision of the [Sex
Offender Registration Act] . . . , regardless of whether the person's
conviction has been dismissed pursuant to Section 1203.4, unless the person
obtains a certificate of rehabilitation and is entitled to relief from
registration pursuant to Section 290.5."


(§ 290.007.) Landry has not shown that the 2005 amendment
to section 290 applies to him. The 2005
amendment will apply to him only if he obtains a certificate of rehabilitation
and is entitled to relief from registration pursuant to Section 290.5.

(§ 290.007.) We need not address the effect of the 2005
amendment on Landry.

Another
category of amendments Landry challenges is the public access to information
and inquiry statutes, sections 290.4 and 290.46. Section 290.4, which became operative on July
1, 1995 (Stats. 1994, c. 867 (A.B. 2500), § 4), requires the Department of
Justice to operate a service through which members of the public may ask for a
determination whether a specific person must register as a sex offender. (§ 290.4, subd. (a).) Section 290.46, which became effective
September 24, 2004 (Stats. 2004, c. 745 (A.B. 488), § 1, eff. Sept. 24,
2004), requires the Department of Justice to make specified information about
registered sex offenders available to the public via an Internet Web site. (§ 290.46, subds. (a)(1), (a)(2)(A).) In California, these statutes have been
implemented through the Megan's Law Web site
( [as of Jan. 11, 2013].)

A
third category is the DNA collection and sampling statutes. The DNA and Forensic Identification Data Base
and Data Bank Act of 1998, section 295 et seq. (the DNA Act), which added
sections 295, 295.1, 296, 296.1, and 296.2 to the Penal Code, requires
collection of DNA samples from defendants required to register for a felony sex
offense pursuant to former section 290.
(See Good v. Superior Court (2008) 158 Cal.App.4th 1494, 1500.) On November 2, 2004, California voters
approved Proposition 69, which amended section 296, subdivision (a) to broaden
the scope of persons required to submit DNA samples. (Good
v. Superior Court
, at p. 1503; Initiative Measure (Prop. 69, § III.4,
approved Nov. 2, 2004, eff. Nov. 3, 2004).)
Proposition 69 added section 296.1 to set forth administrative
procedures for collecting DNA samples from various classes of persons,
including any person required to register under section 290. (§ 296.1, subd. (a); see also § 296, subd.
(a)(2)(A).) Proposition 69 expressly
made section 296.1, subdivision (a)(2) through (6) retroactive. (§ 296.1, subd. (b).)

The
final amendment, discussed previously, is Jessica's Law, which in section
3003.5, subdivision (b), prohibits registered sex offenders from residing
within 2,000 feet of any school or park where children regularly gather. (§ 3003.5, subd. (b).) As stated, however, the attorney general
concedes that the residency restriction does not apply to Landry.



B. Application
of Two-Part Smith v. Doe Test


Using the two-part test from Smith v. Doe, >supra, 538 U.S. 84, we address whether,
collectively, the sex offender registration amendments make discretionary
registration punitive. We conclude they
were not intended to be punitive and are not punitive in nature and
effect. Landry concedes that under >Smith's first prong, the sex offender
registration amendments do not reflect a direct punitive intent. We agree.
There is nothing to indicate the Legislature and the voters intended
these amendments to collectively constitute punishment. The amendments were made gradually by
legislation or by voter initiative between 1998 and 2005 with no obvious
coordinated plan for them as a whole to impose additional punishment on sex
offender registrants.

For
the second part of the test, we ask whether the collective effect of the sex
offender registration amendments is so punitive as to constitute
punishment. (Smith v. Doe, supra, 538 U.S. at p.
92.) In Smith, at pages 89-90 and 105-106, the
United States Supreme Court upheld an Alaska statute requiring sex offenders to
register with law enforcement and making much of the registration information
publicly accessible. The Alaska statute
allowed law enforcement to make publicly accessible via the Internet a
registered sex offender's name, aliases, home address, photograph, physical
description, license and identification numbers of motor vehicles, place of
employment, crime and date of conviction, place and court of conviction, length
and conditions of sentence, and a statement as to whether the offender was in
compliance with registration requirements or cannot be located. (Id. at p. 91.)
Additionally, the statute provided that a sex offender convicted of an
aggravated sex offense or of two or more sex offenses must register for life
and verify his information quarterly, and must notify his local police
department by the next working day if he moves or changes any of his Internet
communication identifiers. (Ibid.)

The
Supreme Court concluded the Alaska Legislature intended to create a civil,
nonpunitive regulatory scheme and the statute was not punitive in effect. (Smith v. Doe, supra, 538 U.S. at pp. 95-96,
105-106.) Concerning public
notification, the court explained, "The purpose and the principal effect
of notification are to inform the public for its own safety, not to humiliate
the offender." (Id. at p.
99.) "Given the general mobility of
our population, for Alaska to make its registry system available and easily accessible
throughout the State was not so excessive a regulatory requirement as to become
a punishment." (Id. at p. 105.) Regarding the reregistration and verification
requirements, the court stated, "The Ex Post Facto Clause does not
preclude a State from making reasonable categorical judgments that conviction
of specified crimes should entail particular regulatory consequences. . . .
[¶] . . . [¶]
The duration of the reporting requirements is not excessive. . . .
[¶] . . . [¶] .
. . The question is whether the
regulatory means chosen are reasonable in light of the nonpunitive
objective. The [Alaska statute] meets
this standard." (Id. at pp. 103-105.) The court concluded, "The [Alaska
statute] is nonpunitive, and its retroactive application does not violate the Ex
Post Facto
Clause." (Id. at pp. 105-106.)

Relying
on Smith v. Doe, supra, 538 U.S 84, the court in Presley, supra, 156 Cal.App.4th at
page 1035, concluded the public notification requirements of sex offender
registration under section 290.46 did not constitute punishment for purposes of
the Sixth Amendment, even when, as is the case here, the facts supporting sex
offender registration were found by a judge through a discretionary
registration order. The >Presley court observed, "[The
United States Supreme Court's] analysis of the Alaska statute is particularly
relevant since California's public notification statutes are quite
similar." (Id. at p. 1034.) The court compared the two statutes and found
that California's public notification statutes were identical to Alaska's,
except that California's statutes do not publicize the name and/or address of
the sex offender's employer or the person's criminal history other than the
specific crimes for which the person is required to register. (Ibid.) The court found the analysis and decision in >Smith on point, and concluded,
"Although here the facts supporting sex offender registration were found
by a judge, the identity of the trier of fact is immaterial to the question of
whether public notification is punishment.
[¶] . . . [W]e conclude that the public notification
requirements of sex offender registration do not constitute punishment for
purposes of the Sixth Amendment." (Id. at p. 1035.) We agree
with the Presley court's application
of Smith's holding, and conclude the
reregistration and public notification requirements are not punitive in effect.


In
People v. Travis (2006) 139 Cal.App.4th 1271, 1293-1295, the Court of
Appeal upheld DNA collection and sampling under sections 296 and 296.1 against
an ex post facto challenge, reasoning that "[t]he imposition of a DNA
testing requirement under section 296.1 for felony convictions may constitute a
disadvantage or burden, but

the statute was neither intended to nor
does inflict punishment for commission of the crime. . . .
Examination of the DNA sample collection law reveals that it was not
enacted to punish convicted felons, but instead to establish a DNA database to
assist in the identification, arrest, and prosecution of criminals." (Id. at p. 1295.) The
appellate court concluded that subjecting a defendant to DNA testing is not
punishment, and therefore is not an ex post facto violation. (Ibid.) We agree with the reasoning of the >Travis court and conclude the DNA
collection and sampling requirements are not punitive in effect.

Collectively,
the purpose and the principal effect of the sex offender registration
amendments is to inform and protect the public and make convicted sex offenders
readily available for police surveillance at all times. We conclude the collective effect of the
challenged amendments does not violate Apprendi
or the ex post facto laws. >

DISPOSITION

We
modify the December 9, 2011 discretionary registration order to add a provision
stating that Landry is not subject to a Penal Code section 3003.5, subdivision
(b) residency restriction. This
modification does not alter his duty to register as a sex offender pursuant to
Penal Code section 290.006, and the order is in all other respects affirmed.

O'ROURKE, J.





WE CONCUR:



BENKE,
Acting P. J.



NARES,
J.





id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1] All statutory
references are to the Penal Code unless otherwise specified.

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">[2] Section 290.006
provides: "Any person ordered by
any court to register pursuant to the [Sex Offender Registration] Act for any
offense not included specifically in subdivision (c) of Section 290, shall so
register, if the court finds at the time of conviction or sentencing that the
person committed the offense as a result of sexual compulsion or for purposes
of sexual gratification. The court shall
state on the record the reasons for its findings and the reasons for requiring name="SR;2301">registration."
"[D]iscretionary registration does not depend on the specific crime
of which a defendant was convicted.
Instead, the trial court may require a defendant to register . . . even
if the defendant was not convicted of a sexual offense. . . .
[U]nder the discretionary provision [citation], it may require lifetime
registration if it finds the crime to have a sexual purpose." (Hofsheier, supra, 37 Cal.4th at pp. 1197-1198.)




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