In re Sostre

Filed 2/10/10 In re Sostre CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original Proceedings; Petition for writ of habeas corpus. Petition denied.

Richard Schwartzberg for Petitioner.

Mennemeier, Glassman & Stroud, Kenneth C. Mennemeier, Kelcie M. Gosling, and Landon D. Bailey, for Respondent.

* * *

Petitioner Peter Sostre challenges an order by the California Department of Corrections and Rehabilitation (CDCR) that he must comply upon parole with Jessicas Law, which restricts registered sex offenders from residing near schools and parks where children gather. He contends the residency restriction is being applied to him retroactively and ex post facto. He further contends the residency restriction is unconstitutionally vague and an unreasonable parole condition.

We reject petitioners ex post facto claim. The California Supreme Court has held the residency restriction applies prospectively to those parolees who have both been released on parole and moved into a restricted zone after Jessicas Laws 2006 effective date. (In re E.J. (Feb. 1, 2010, S156933) __ Cal.4th __ (E.J.) [p. 17].) Petitioner is such a parolee, and so the law is being applied to him prospectively.

And on the existing record, we must also reject petitioners unreasonableness and vagueness claims. The E.J. court declined even to consider similar claims, stating evidentiary hearings will have to be conducted to establish the relevant facts necessary to decide each such claim. (E.J., supra, __ Cal.4th __ [p. 28].) The current petition lacks sufficient evidence of the relevant facts necessary to decide the unreasonableness and vagueness claims. Thus we deny the petition, but without prejudice to plaintiff filing a subsequent petition in the superior court.

FACTS

Petitioner was convicted of lewd conduct with a child under the age of 14 (Pen. Code, 288, subd. (a))[1] in 1992. He was released on parole and convicted of assault to commit rape ( 220) and forcible sexual penetration ( 289) in 1994. He was released on parole again in 1999, returned to custody, and released on parole again in 2003. He was required to register as a sex offender. ( 290.)

Petitioner was convicted of felony possession of a controlled substance in April 2008. (Health & Saf. Code, 11377, subd. (a).) He was released on parole in October 2008. Upon his release, petitioner sought to live with his grandmother in Anaheim. CDCR informed petitioner he could not live there due to Jessicas Laws residency restriction ( 3003.5, subd. (b)) and another statute barring certain high-risk sex offenders from residing near schools. ( 3003, subd. (g).) Instead of living with his grandmother, petitioner lived on the streets. Subsequently, petitioner was repeatedly returned to custody and released on parole.

Petitioner filed a petition for writ of habeas corpus in the superior court. The court denied it because petitioner had failed to exhaust his administrative remedies. Petitioner then filed this petition. We invited an informal response, issued an order to show cause, and accepted a return and traverse.

DISCUSSION

California law has provided for sex offender registration since 1947. (Wright v. Superior Court (1997) 15 Cal.4th 521, 526.) Sex offender registration is regulatory, not punitive, and does not violate the ex post facto clauses. (People v. Castellanos (1999) 21 Cal.4th 785, 796.) The voters substantially broadened the scope and consequences of sex offender registration in November 2006 by approving Jessicas Law. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, 1, p. 127.)

Among other changes, Jessicas Law imposed a residency restriction for all registered sex offenders. (Voter Information Guide, Gen. Elec., supra, text of Prop. 83,  21, p. 135.) It added section 3003.5, subdivision (b), which 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. Other increased restrictions on registered sex offenders included requiring certain sex offenders to be monitored for life by a global positioning system, at their expense. (Voter Information Guide, Gen. Elec., supra, text of Prop. 83,  22, p. 135; 3004, subds. (b), (c).)

Jessicas Law Is Not Being Applied Retroactively to Petitioner

Petitioner contends the residency restriction is being applied to him retroactively, violating the bans on ex post facto laws. (See U.S. Const., art. I,  10; Cal. Const., art. I,  9.) [T]he critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statutes effective date. (People v. Grant (1999) 20 Cal.4th 150, 157.) Petitioner asserts the last necessary acts for triggering the residency restriction were his sexual offenses in 1992 and 1994 that required sex offender registration.

In E.J., the California Supreme Court held [f]or purposes of retroactivity analysis, the pivotal last act or event [citation] that must occur before the mandatory residency restrictions come into play is the registered sex offenders securing of a residence upon his release from custody on parole. If that last act or event occurred subsequent to the effective date of section 3003.5(b), a conclusion that it was a violation of the registrants parole does not constitute a retroactive application of the statute. (E.J., supra, __ Cal.4th __ [pp. 15-16].)

The E.J. court relied upon section 3003.5, subd. (b), which imposes the residency restriction upon any person for whom registration is required pursuant to Section 290. (E.J., supra, __ Cal.4th __ [p. 13].) Because any such person is already subject to the lifetime registration requirement of section 290, that status, together with his act of moving into noncompliant housing upon his release from custody on parole after the effective date of Proposition 83, subjects him to the residency restrictions of section 3003.5(b). (Ibid.) Thus the . . . residency restrictions . . . are not implicated until a convicted and registered sex offender is released from custody and must take up residency in the community to which he has been paroled. (Id. at p. __ [p. 17].)

E.J. dooms petitioners ex post facto claims. Petitioner sought to live in a restricted zone after his release on parole in October 2008. This is the pivotal last act or event [citation] that must occur before the mandatory residency restrictions come into play. (E.J., supra, __ Cal.4th __ [pp. 15-16].) Because petitioner was released on parole after Jessicas Law became effective in 2006, he is thus presumed to have had fair notice of the new restrictions applicable to [him] prior to [his] release on parole and [his] securing of noncompliant housing. (Id. at p. __ [p. 20].)

It is immaterial petitioner committed his sexual offenses and registered as a sex offender before Jessicas Law became effective. (E.J., supra, __ Cal.4th __ [p. 18].) He was released on parole after its effective date, so he is being subjected to new restrictions on where [he] may reside while on [his] current parole restrictions clearly intended to operate and protect the public in the present, not to serve as additional punishment for past crimes. (Id. at p. __ [p. 21].) Petitioners ex post facto claim is unavailing given our conclusion that the law is not being applied retroactively. (Id. at p. __ [p. 22].)

The Existing Record Does Not Support the Vagueness and Unreasonableness Claims

Petitioner contends the residency restriction is unconstitutionally vague because he cannot readily ascertain the 2,000-foot exclusion zone or which parks are those where children gather. He further contends the residency restriction is an unreasonable parole condition because it is not reasonably related to his offenses or likelihood of future criminality let alone narrowly tailored to serve a compelling state interest justifying infringement of his constitutional travel and residency rights.[2] (See In re Stevens (2004) 119 Cal.App.4th 1228,1234, 1237 [parole condition standards].)

We cannot gauge vagueness in a vacuum. To determine whether a statute is unconstitutionally vague, it must be applied in a specific context. [Citation.] Thus, in judging the constitutionality of [a statute] we must determine not whether [it] is vague in the abstract but, rather, whether it is vague as applied to this appellants conduct in light of the specific facts of this particular case. (Ortiz v. Lyon Management Group, Inc. (2007) 157 Cal.App.4th 604, 613.) The E.J. court held the vagueness claims there were considerably more complex as applied challenges to the enforcement of the new residency restrictions (E.J., supra, __ Cal.4th __ [p. 25]) for which evidentiary hearings will have to be conducted to establish the relevant facts necessary to decide each such claim. (Id. at p. __ [p. 28].) We too need facts facts about the location where defendant wishes to live, its proximity and access to any nearby schools or parks, the nature of any such parks, the ages of persons who use those parks, and the regularity with which children gather there.

Nor can we determine the residency restrictions reasonableness without facts. The E.J. court held it, as a reviewing court, could not decide whether the residency restriction is an unreasonable, vague and overbroad parole condition that infringes on various state and federal constitutional rights. (E.J., supra, __ Cal.4th __ [p. 24].) It transferred the underlying matters to the Courts of Appeal for subsequent transfer to the superior courts, which are manifestly in the best position to conduct such hearings and find the relevant facts necessary to decide the claims . . . . (Id. at p. __ [p. 28].)

The E.J. court noted the factual issues to be decided at the evidentiary hearings would include, but are not necessarily limited to, establishing each petitioners current parole status; the precise location of each petitioners current residence and its proximity to the nearest public or private school, or park where children regularly gather [citation]; a factual assessment of the compliant housing available to petitioners and similarly situated registered sex offenders in the respective counties and communities to which they have been paroled; an assessment of the way in which the mandatory parole residency restrictions are currently being enforced in each particular jurisdiction; and a complete record of the protocol CDCR is currently following to enforce section 3003.5(b) in those respective jurisdictions. (E.J., supra, __ Cal.4th __ [pp. 28-29].) The petition contains no substantial evidence on most of these issues.

Other factual issues may also be relevant to petitioners specific claims. These issues may include, but are not limited to, his property interest in his grandmothers home, if any; his risk of recidivism; the correlation between residency restrictions and reduced incidents of sexual assault; and the availability of social services and support networks near his grandmothers house and at non-restricted locations. But the petition contains no substantial evidence on these issues, either.

We follow the California Supreme Courts lead in requiring facts to support the unreasonableness and vagueness claims, but cannot walk in its footsteps. It was able to secure adjudication of the relevant factual issues by transferring the underlying matters to the Courts of Appeal for subsequent transfer to the superior courts for evidentiary hearings. (E.J., supra, __ Cal.4th __ [p. 29].) But we lack any independent procedural mechanism for transferring this case to the superior court. At most, we may issue an order to show cause and direct it to be returnable in the superior court. (See 1508, subd. (b); Cal. Rules of Court, rule 8.385(e).) But the time for that has passed. We have already accepted a return, and a traverse, and the cause is at issue. We are duty bound to decide the petition. ( 1484.) On the existing record, we must deny it.

But our denial of this petition does not bar petitioner from filing a new petition, with new allegations and supporting evidence, in the superior court. Nor would it bar the superior court from issuing an order to show cause, if appropriate, and conducting the sort of evidentiary hearing contemplated by E.J.[3]

DISPOSITION

The petition for a writ of habeas corpus is denied without prejudice to the filing of a subsequent petition in the superior court.

IKOLA, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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[1] All further statutory references are to the Penal Code.

[2] CDCR contends we need not determine whether the parole condition is reasonable because the residency restriction applies to petitioner by operation of law. (See 3003.5, subd. (b) [making violation of residency restriction unlawful].) But the E.J. court declined to decide whether Jessicas Law create[s] a separate new misdemeanor offense applicable to all [registered] sex offenders . . . irrespective of their parole status because CDCR was enforcing the residency restriction only as a parole violation. (E.J., supra, __ Cal.4th __ [pp. 11-12, fn. 5].) We similarly decline to decide whether the residency restriction applies to petitioner other than as the parole condition that CDCR seeks to impose.

[3] The superior court denied the prior petition for failure to exhaust administrative remedies. [T]he administrative remedies exhaustion rule has several exceptions, including . . . when the administrative agency cannot provide an adequate remedy. . . . (Sabatasso v. Superior Court (2008) 167 Cal.App.4th 791, 795.) This exception applies when an agency is attempting to enforce its own policy or statutory interpretation of the residency restriction and [t]here is no possibility it would change its decision in appeals at the second or third level because this would require it to act contrary to its own rule. (Ibid.)