P. v. Godinez

 

 

 

 

Filed 1/10/14  P.
v. Godinez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   HUGO GODINEZ,         Defendant and Appellant.

G047657   (Super. Ct. Nos. 11WM11018 & 30‑2011-530069)   O P I N I O N

 

Appeal from a judgment of the Superior
Court of Orange County, William D. Claster, Judge.  Reversed.

Frank Ospino, Public Defender, Mark S. Brown, Assistant Public
Defender, and Scott Van Camp, Deputy Public Defender for Defendant and
Appellant.

John Philipsborn; Riordan & Horgan and Dennis P. Riordan for
California Attorneys for Criminal Justice as Amicus Curiae on behalf of
Defendant and Appellant.

Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy
District Attorney for Plaintiff and
Respondent.

Woodruff, Spradlin & Smart and Omar Sandoval for City of Tustin as Amicus
Curiae on behalf of Plaintiff and Respondent.

*                      *                      *

Defendant Hugo Godinez appeals from his conviction for violating a
county ordinance that made it a misdemeanor for a registered sex offender to
enter a county park without the county sheriff’s written permission.  Godinez argues state law preempts the county href="http://www.fearnotlaw.com/">ordinance and therefore his conviction is
void.  We agree.  The Legislature has enacted a comprehensive
statutory scheme regulating the daily life of sex offenders to reduce the risk
of an offender committing a new offense. 
As explained below, we conclude the state statutory scheme imposing restrictions
on a sex offender’s daily life fully occupies the field and therefore preempts
the county’s efforts to restrict sex offenders from visiting county parks.

We also conclude state law preempts the ordinance’s requirement that
sex offenders obtain the county sheriff’s written permission before entering a
county park.  This regulation is simply a
de facto registration
requirement.  But state law has long
occupied the area of sex offender registration to the exclusion of href="http://www.sandiegohealthdirectory.com/">local regulation and the
county ordinance’s written permission requirement amounts to an additional
registration requirement imposed on sex offenders who wish to enter county parks.  We decline to sever the written permission
requirement from the county ordinance. 
To do so would result in an outright ban on sex offenders entering
county parks.  But taking this step would
substantially alter the meaning of the county ordinance as originally enacted
because nothing in the language of the county ordinance or its history suggests
the county intended to bar sex offenders under all circumstances from county
parks.

I

Facts and Procedural History

In June 2010, Godinez was convicted of misdemeanor sexual battery (Pen.
Code, § 243.4, subd. (e)(1)), which required him to register as a sex
offender under Penal Code section 290.href="#_ftn1" name="_ftnref1" title="">[1]  Godinez remained on
probation for that offense in May 2011 when he visited Mile Square Regional Park for a company
picnic his employer organized.  After learning
of Godinez’s park visit, the District Attorney filed a misdemeanor complaint charging
him with violating section 3-18-3 of the Codified
Ordinances of the County of Orange (Section 3-18-3).  That section states, “Any person required to
register pursuant to California Penal Code section 290, et seq. who enters
into or upon any Orange County Park where children regularly gather without
written permission from the Orange County
Sheriff or Sheriff’s designee is guilty of a misdemeanor.”  (§ 3-18-3.)  The ordinance broadly defines “Orange County Park” as “any
county-owned, leased, operated or maintained land before or after the effective
date of this article by the County of Orange held as a harbor, beach, park or recreation area
. . . .”  (Orange County Code, § 3-18-2.)

Godinez demurred to the complaint, arguing Section 3-18-3 was
invalid because (1) California’s comprehensive statutory scheme governing
the registration and regulation of sex offenders occupied the field and
therefore preempted local ordinances imposing similar requirements; (2) the
ordinance was unconstitutionally vague; and (3) the ordinance infringed on
Godinez’s fundamental constitutional rights to intrastate travel, free speech,
and freedom of association and assembly. 
The trial court overruled the demurrer. 
After Godinez and the District Attorney stipulated to waive a jury
trial, the trial court conducted a one-day bench trial and found Godinez guilty
of violating Section 3-18-3. 

Godinez appealed to the Superior Court Appellate Division, again
arguing Section 3-18-3 was invalid because state
law preempted the ordinance, it was unconstitutionally vague, and it infringed
on his fundamental constitutional rights. 
The Appellate Division reversed the trial court’s judgment because it
found the “extensive state legislation restrict[ing] and regulat[ing] numerous
areas of the lives of registered sex offenders” preempted Section 3-18-3.  Based on its preemption
ruling, the Appellate Division declined to decide Godinez’s other
challenges. 

On its own motion, the Appellate Division certified transfer of Godinez’s
appeal to this court under California Rules of Court, rule 8.1005(a) “to settle
the ‘important question’ of whether cities and counties may enact their own
local ordinances prohibiting registered sex offenders from being present in or
near locations including parks and other places ‘where children regularly
gather,’ or whether such local ordinances are barred by the enactment of state
statutes including the specific enactment in Penal Code section 290.03 and
related statutes of a ‘standardized, statewide system to identify, assess,
monitor and contain known sex offenders.’” 
Upon receiving the Appellate Division’s certification order, we ordered
Godinez’s appeal transferred to this court.

II

Discussion

A.        Governing Preemption Principles

“‘Under article XI, section 7 of the California Constitution, “[a]
county or city may make and enforce within its limits all local, police,
sanitary, and other ordinances and regulations not in conflict with general
[state] laws.”  [¶]  â€œIf otherwise valid local legislation
conflicts with state law, it is preempted by such law and is void.”  [Citations.]  [¶]  â€œA
conflict exists if the local legislation ‘“duplicates,
contradicts, or enters an area fully occupied by general law, either expressly or
by legislative implication.”’”  [Citations.]’  [Citations.]” 
(O’Connell v. City of >Stockton (2007) 41 Cal.4th 1061, 1067, original italics (>O’Connell).)

Godinez does not argue Section 3-18-3
either duplicates or contradicts state law nor does he argue state law
expressly preempts Section 3-18-3.  Instead, Godinez’s primary challenge is that
state law impliedly preempts Section 3-18-3 by fully
occupying the field it regulates.  The
state impliedly preempts a field when “‘“(1) the subject matter has been so
fully and completely covered by general law as to clearly indicate that it has
become exclusively a matter of state concern; (2) the subject matter has
been partially covered by general law couched in such terms as to indicate
clearly that a paramount state concern will not tolerate further or additional
local action; or (3) the subject matter has been partially covered by
general law, and the subject is of such a nature that the adverse effect of a
local ordinance on the transient citizens of the state outweighs the possible
benefit to the” locality [citations].’ 
[Citation.]”  (>American Financial Services Assn. v. City of
Oakland (2005)
34 Cal.4th 1239, 1252 (American Financial).) 

“If the subject matter or field of the legislation has been fully
occupied by the state, there is no room for supplementary or complementary
local legislation, even if the subject were otherwise one properly
characterized as a ‘municipal affair.’  [Citations.]” 
(Lancaster v. Municipal Court
(1972) 6 Cal.3d 805, 808; see also American
Financial, supra, 34 Cal.4th
at p. 1253 [“‘Whenever the Legislature has seen fit to adopt a general
scheme for the regulation of a particular subject, the entire control over
whatever phases of the subject are covered by state legislation ceases as far
as local legislation is concerned’”].) 
The Legislature’s “‘intent with regard to occupying the field to the
exclusion of all local regulation is not to be measured alone by the language
used but by the whole purpose and scope of the legislative scheme.’  [Citations.]”  (American
Financial, at p. 1252.)  The
test for field preemption or occupation does not focus on the number of
statutes involved, but on “whether the nature and extent of the coverage of a
field is such that it could be said to display a patterned approach to the
subject.”  (Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166, 182 (>Baldwin); see also Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 708 (>Fisher).)

For example, in O’Connell,
the Supreme Court considered whether state law impliedly preempted a local
ordinance requiring an offender to forfeit any vehicle used “‘to acquire or
attempt to acquire any controlled substance.’” 
(O’Connell, >supra, 41 Cal.4th at p. 1066,
italics omitted.)  To answer the
question, the O’Connell court
analyzed the state’s Uniform Controlled Substances Act (Health & Saf. Code,
§ 11000 et seq.; UCSA) as a whole, including its detailed provisions
regulating the lawful use and distribution of controlled substances, defining
criminal offenses involving the unlawful possession, distribution, and sale of
controlled substances, and the penalties for those offenses.  The UCSA imposed the penalty of vehicle forfeiture
for the sale and distribution of large quantities of controlled substances, but
unlike the local ordinance it did not impose vehicle forfeiture as a penalty
for purchasing or attempting to purchase small quantities of a controlled
substance.  (O’Connell, at pp. 1069-1071.)

Based on its review of the entire UCSA, the O’Connell court concluded state law impliedly preempted the local
ordinance because the UCSA fully occupied the field of penalizing crimes
involving controlled substances:  “The
comprehensive nature of the UCSA in defining drug crimes and specifying
penalties (including forfeiture) is so thorough and detailed as to manifest the
Legislature’s intent to preclude local regulation.”  (O’Connell,
supra, 41 Cal.4th at
p. 1071.)  The Legislature’s
decision to omit vehicle forfeiture as a penalty for possessing drugs below a
specified amount prevented local authorities from imposing the omitted penalty on
those same offenses because the Legislature’s comprehensive statutory scheme “manifest[ed]
a clear intent to reserve that severe penalty for very serious drug crimes
involving the manufacture, sale, or possession for sale of specified amounts of
certain controlled substances.”  (>Id. at p. 1072; >In re Lane (1962) 58 Cal.2d 99,
103-104 (Lane) [extensive state statutory
scheme regulating criminal aspects of sexual activity preempted local ordinance
outlawing fornication and adultery even though the state statutes did not
outlaw those specific acts; “It is therefore clear that the Legislature has
determined by implication that such conduct shall not be criminal in this
state”].) 

In finding the ordinance preempted, the O’Connell court criticized an earlier appellate decision that found
the UCSA did not preempt a similar ordinance requiring vehicle forfeiture.  That earlier decision upheld the local
ordinance because the UCSA was “‘silent with regard to vehicles used by drug
buyers’” and therefore the “ordinance covered an area of law ‘untouched by
statewide legislation.’”  (>O’Connell, supra, 41 Cal.4th at p. 1072, quoting and disapproving >Horton v. City of Oakland (2000) 82
Cal.App.4th 580, 586, italics omitted.) 
The Supreme Court explained this earlier appellate decision erred by “focusing
solely on the UCSA’s forfeiture provisions . . . [without] consider[ing]
the UCSA’s comprehensive scheme of drug crime penalties, which include
forfeiture of various items of property, including vehicles, when used in
specified serious drug offenses.”  (>O’Connell, at p. 1072.)

In American Financial, the
Supreme Court likewise examined the state’s entire statutory scheme regarding
predatory lending practices in the home mortgage industry to determine whether
state law impliedly preempted a local ordinance that imposed higher standards
and covered more mortgage loans than the state scheme.  (American
Financial, supra, 34 Cal.4th
at pp. 1246-1251.)  The >American Financial court found the state
statutes defining what mortgages were covered, what lending acts were
prohibited, who could be held liable for statutory violations, the available
enforcement mechanisms, and the defenses to any purported violations were “‘so
extensive in their scope that they clearly show[ed] an intention by the
Legislature to adopt a general scheme for the regulation of’ predatory lending
tactics in home mortgages.  [Citation.]” 
(Id. at
pp. 1254-1255.)  By purporting to
augment the state statutes, the local ordinance “revisit[ed]” an area fully
occupied by state law and “undermine[d] the considered judgments and choices of
the Legislature” in adopting the statutes. 
(Id. at p. 1257.)  Accordingly, state law preempted the local
ordinance, including mortgages the state’s statutory scheme did not cover.  (Id.
at p. 1258.)

In contrast, the Supreme Court’s recent decision in >City of Riverside v. Inland Empire Patients
Health & Wellness Center, Inc. (2013) 56 Cal.4th 729 (>City of Riverside), concluded state law
did not preempt a local land use ordinance banning medical marijuana
dispensaries because state law did not establish a comprehensive scheme
regulating medical marijuana.  The state
law on the subject merely “adopted limited exceptions to the sanctions of this
state’s criminal and nuisance laws in cases where marijuana is possessed,
cultivated, distributed, and transported for medical purposes.”  (Id.
at p. 739.)  According to the
Supreme Court, the state “statutory terms describe[d] no comprehensive scheme
or system for authorizing, controlling, or regulating the processing and
distribution of marijuana for medical purposes” (id. at p. 755), but rather represented “careful and limited
forays into the subject of medical marijuana, aimed at striking a delicate
balance in an area that remains controversial, and involves sensitivity in
federal‑state relations” (id.
at p. 762).

The City of >Riverside court emphasized land use regulation is an area over which local
government traditionally has exercised control and therefore “‘California courts
will presume, absent a clear indication of preemptive intent from the
Legislature, that such regulation is not
preempted by state statute.’  [Citation.]”
(City of Riverside, >supra, 56 Cal.4th at p. 743,
original italics.)  The Supreme Court
concluded the narrow and limited nature of the state medical marijuana law did
not provide a clear indication the Legislature intended to preempt local land
use regulation affecting medical marijuana dispensaries.  Nothing in the state law required local
governments to accommodate medical marijuana. 


As these cases demonstrate, the facts and circumstances of each case
determine whether the Legislature established a comprehensive statutory scheme
that impliedly preempts all local regulation on the subject.  (In re
Hubbard (1964) 62 Cal.2d 119, 128, overruled on another point in >Bishop v. City of San Jose (1969) 1
Cal.3d 56, 63; Gregory v. City of San Juan
Capistrano (1983) 142 Cal.App.3d 72, 82 (Gregory).)  “The party
claiming that general state law preempts a local ordinance has the burden of
demonstrating preemption.” (Big Creek
Lumber Co. v. County> of >Santa Cruz (2006) 38 Cal.4th 1139, 1149 (Big Creek Lumber).)  “‘Whether
state law preempts a local ordinance is a question of law that is subject to de
novo review.’  [Citation.]”  (Rental
Housing Assn. of Northern >Alameda> >County> v. City of >Oakland (2009) 171 Cal.App.4th 741, 752.)

B.        The Legislature’s Comprehensive and Standardized Scheme Regulating Sex
Offenders Preempts Orange County’s Ordinance

Godinez contends state law impliedly preempts Section 3-18-3 because the ordinance regulates an area the state has fully
occupied by enacting a comprehensive statutory scheme regulating sex
offenders.  To evaluate this challenge we
must first identify the subject Section 3-18-3
regulates and the specific field Godinez claims is occupied by state law.  (Sherwin-Williams
Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 904 (>Sherwin-Williams); Gregory, supra,
142 Cal.App.3d at p. 84.) 
Next, we must examine the nature and scope of those state statutes to
determine whether they are logically related and establish a “‘patterned
approach’” to regulating an area that includes the subject matter covered by
Section 3-18-3.  (>Fisher, supra, 37 Cal.3d at p. 708; Baldwin, supra,
31 Cal.App.4th at p. 182.)  A
preempted field “cannot properly consist of statutes unified by a single common
noun,” but rather requires closely related statutes that regulate an area in a
manner that reveals a legislative intent to occupy the field.  (Galvan
v. Superior Court (1969) 70 Cal.2d 851, 862 (Galvan).)

1.         The Relevant State Law Field Includes All Restrictions
Imposed on a Sex Offender’s Daily Life

The parties agree section 3-18-3 regulates a sex offender’s
ability to visit a particular type of public place by prohibiting the offender
from entering an “Orange County Park where children regularly gather” without
the Orange County Sheriff’s written permission. 
(§ 3-18-3.)  The ordinance’s stated purpose is “to protect
children from registered sex offenders by restricting sex offenders’ access to
locations where children regularly gather. 
It is intended to reduce the risk of harm to children by impacting the
ability of sex offenders to be in contact with children.”  (Orange County Code, § 3-18-1.)

The District Attorney contends we must define the relevant state law
field based on Section 3-18-3’s subject matter, which
regulates “where sex offenders can go.”  In
contrast, Godinez contends we must define the field based on the state laws
regulating sex offenders because those are the provisions that have occupied
the field and therefore preempt the local ordinance.  We agree we must look to state law to define
the relevant field when determining whether the Legislature has fully occupied the
area by enacting a comprehensive statutory scheme.  (Fisher,
supra, 37 Cal.3d at p. 708;
Galvan, supra, 70 Cal.2d at p. 862; Baldwin, supra,
31 Cal.App.4th at p. 182.) 

The District Attorney’s test for defining the state law field by looking
to the local ordinance’s subject matter would turn the preemption analysis on
its head and allow local government to define the scope of state law.  The relevant preemption inquiry is whether
state law has occupied the field to the exclusion of local regulation, and
therefore we look to state law to define the field it purportedly occupies.  (O’Connell,
supra, 41 Cal.4th at
p. 1072 [earlier decision erred in narrowly defining field based on
subject of local ordinance without considering entire field regulated by the
state’s comprehensive statutory scheme].) 
We look to the local ordinance’s subject matter to determine whether it
falls within the state law field, not to define the field.  (Fisher,
supra, 37 Cal.3d at p. 708;
Galvan, supra, 70 Cal.2d at p. 862.) 

Defining the relevant state law field as the District Attorney
suggests—the regulation of where sex offenders can go—would require us to
ignore other state laws designed to achieve the same purpose as Section 3-18-3:  protecting children from
registered sex offenders by restricting access to locations where children
regularly gather.  (Orange County Code, § 3-18-1.)  For example, limiting the
relevant field to the geographical restriction of sex offenders would preclude us
from considering state laws that restrict sex offenders from living near schools
and parks.  (§ 3003.5.)  The District Attorney’s analysis similarly would
require a reviewing court to ignore state laws that allow law enforcement
officials to monitor certain sex offenders with global positioning
devices.  (§§ 3000.07, 3004,
subd. (b).)  It also would eliminate
from the analysis state laws that limit or in some cases prohibit registered
sex offenders from accepting a job or volunteer position involving direct and
unaccompanied contact with minor children. 
(§ 290.95.)  “‘Where the
Legislature has adopted statutes governing a particular subject matter, its
intent with regard to occupying the field to the exclusion of all local
regulation is not to be measured alone by the language used but by the whole
purpose and scope of the legislative scheme.’ 
[Citations.]”  (>American Financial, supra, 34 Cal.4th at p. 1252; see also >Lane, supra, 58 Cal.2d at pp. 102-103.)  Defining the field as the District Attorney
suggests would require us to ignore a significant portion of the purpose and
scope of the state’s legislative scheme.

Accordingly, we define the relevant field as the restrictions imposed
on a sex offender’s daily life to reduce the risk he or she will commit another
similar offense.  As explained below, the
Legislature has not only adopted numerous statutes placing geographical
restrictions on sex offenders, but has also adopted other regulations governing
other aspects of an offender’s life to protect the public from future harm.  We must consider all of those statutes
together to determine whether they establish a “‘patterned approach’” to
regulating a sex offender’s daily life and manifest a legislative intent to
fully occupy the field to the exclusion of all local regulation.  (Fisher,
supra, 37 Cal.3d at p. 708;
Galvan, supra, 70 Cal.2d at p. 862; Baldwin, supra,
31 Cal.App.4th at p. 182.) 

2.         The Legislature Enacted a Comprehensive Statutory Scheme
That Fully Occupies the Field

The restrictions the Penal Code imposes on a sex offender’s daily
life include (1) a lifetime duty to register with local law enforcement
for each city or county in which the offender resides and to update that
registration annually or upon any relevant change (§§ 290-290.024); (2) a
state-maintained Web site that discloses information about the offender to the
public (§§ 290.4, 290.45, 290.46); (3) a sex offender’s duty to
submit to monitoring with a global positioning device while on parole and
potentially for the remainder of the offender’s life if the underlying sex
offense was one of several identified felonies (§§ 3000.07, 3004,
subd. (b)); (4) a prohibition against the offender “enter[ing] any
park where children regularly gather without the express permission of his or
her parole agent” if the victim of the underlying sex offense was under 14
years of age (§ 3053.8, subd. (a)); (5) a prohibition against
the offender residing with another sex offender while on parole and within
2,000 feet of a school or park for the rest of the offender’s life
(§ 3003.5); (6) a prohibition against the offender entering any
school without “lawful business” and written permission from the school
(§ 626.81); (7) enhanced penalties for the offender remaining at or
returning to “any school or public place
at or near which children attend or normally congregate” after a school or law
enforcement official has asked the offender to leave (§ 653b, italics
added); (8) a prohibition against the offender entering a day care or
residential facility for elders or dependent adults without registering with
the facility if the victim of the underlying sex offense was an elder or
dependent adult (§ 653c); (9) a duty to disclose the offender’s
status as a sex offender when applying for or accepting a job or volunteer
position involving direct and unaccompanied contact with minor children
(§ 290.95, subds. (a) & (b)); (10) a prohibition against the
offender working or volunteering with children if the victim of the underlying
sex offense was under 16 years of age (§ 290.95, subd. (c)); and (11) a
prohibition against the offender receiving publicly funded prescription drugs
or other therapies to treat erectile dysfunction (§ 290.02). 

Considered individually, the language in each of these statutes does
not reflect a legislative intent to fully occupy the field of regulating a sex
offender’s daily life; they each simply regulate a specific aspect of a sex
offender’s life.  Considered
collectively, however, a different picture emerges.  The Legislature expressly declared its intent
to establish a comprehensive and standardized system for regulating sex
offenders when it passed the Sex Offender Punishment, Control, and Containment
Act of 2006 (Stats. 2006, ch. 337).  That
act contains more than 60 sections and made numerous changes to the statutes
regulating sex offenders, including adding or amending several of the foregoing
statutes.href="#_ftn2" name="_ftnref2"
title="">[2]  (People v. Cornett (2012) 53 Cal.4th 1261, 1267.)  Among its many provisions, the act created
several new offenses, increased the penalties for certain existing offenses,
modified the statutes governing parole and probation for sex offenders, and
revised the sex offender registration requirements and the system for
disseminating information regarding sex offenders to the public and law
enforcement.  (Ibid.) 

As part of the 2006 act, the Legislature enacted section 290.03,
which states, “The Legislature finds and declares that a comprehensive system of risk assessment, supervision, monitoring and
containment for registered sex offenders residing in California
communities is necessary to enhance public safety and reduce the risk of
recidivism posed by these offenders. . . .  [¶] 
. . .  [¶]  In enacting the Sex Offender Punishment,
Control, and Containment Act of 2006, the Legislature hereby creates a >standardized, statewide system to
identify, assess, monitor and contain known sex offenders for the purpose of
reducing the risk of recidivism posed by these offenders, thereby protecting
victims and potential victims from future harm.”  (§290.03, subds. (a) & (b), italics added.)  A comprehensive system is one that
“include[es] or deal[s] with all or nearly all elements or aspects of [that
subject].”  (See Oxford Online Dict.
[as of Dec. 31,
2013]; see also Merriam-Webster Online
Dict. [as of Dec. 31, 2013] [defining comprehensive as “covering completely or broadly”].)

Considering the Legislature’s declared intent coupled with the scope
and nature of the restrictions the foregoing Penal Code sections imposed, we
conclude the Legislature established a complete system for regulating a sex
offender’s daily life and manifested a legislative intent to fully occupy the
field to the exclusion of Section 3-18-3 and
other local regulations.  Considered as a
whole, these statutes regulate much more than the geographic restrictions
imposed on a sex offender.  They regulate
numerous aspects of a sex offender’s life so that both law enforcement and the
public can monitor the sex offender on a daily basis.  They also restrict the places a sex offender may
visit and the people with whom he or she may interact.  These Penal Code sections regulate a sex
offender’s duty to inform law enforcement where he or she resides, law
enforcement’s ability to track a sex offender’s movement through a global
positioning device, where and with whom a sex offender may reside, what sort of
jobs or volunteer positions a sex offender may accept, and, most importantly
for this case, the public and private places a sex offender may visit.

Although the Penal Code does not include a provision identical to the
restrictions Section 3-18-3 imposed on all sex
offenders entering a public park where children regularly gather, it does
include several sections prohibiting or limiting a sex offender’s ability to
visit many public and private places where children regularly gather.  A sex offender on parole for an offense
against a child under 14 years of age may not enter a park where children
regularly gather without permission from his or her parole agent.  (§ 3053.8, subd. (a).)  A sex offender may not enter a school without
“lawful business” and written permission from the school.  (§ 626.81.)  A sex offender who remains at or returns to a
school or any other public place
where children regularly gather after a school or law enforcement official has
asked the offender to leave is subject to heightened penalties.  (§ 653b.)  A sex offender who committed an offense
against a child under 16 years of age may not volunteer or work where he or she
would have direct and unaccompanied contact with minor children.  (§ 290.95.)  Finally, a sex offender may never reside
within 2,000 feet of a school or park where children regularly gather.  (§ 3003.5, subd. (b).)  These restrictions are similar to Section 3-18-3’s prohibition; indeed, in some aspects they go beyond that
prohibition.

Precisely how to restrict a sex offender’s access to places where
children regularly gather reflects the Legislature’s considered judgment on how
to protect children and other members of the public from the risk of a sex
offender reoffending while also recognizing a sex offender’s right to live,
work, assemble, and move about the state. 
(See § 290.03; American
Financial, supra, 34 Cal.4th
at pp. 1258-1259.)  The
Legislature’s enactment of a comprehensive statutory scheme that includes
significant restrictions on a sex offender’s access to places where children
regularly gather, but excludes an outright ban on all sex offenders entering a
park without written permission, manifests a legislative determination that
such a ban is not warranted.  (>O’Connell, supra, 41 Cal.4th at p. 1072; American Financial, at p. 1258; Lane, supra,
58 Cal.2d at pp. 103-104.)  “In
revisiting this area fully occupied by state law, [Section 3-18-3] undermines the considered judgments and choices of the
Legislature, and is therefore preempted.” 
(American Financial, at
p. 1257.)

Indeed, we see no relevant distinction between the foregoing
statutory scheme restricting a sex offender’s daily life and other statutory
schemes the Supreme Court has found to fully occupy a field even though the
state scheme did not include a provision identical to the preempted local
ordinance.  (O’Connell, supra,
41 Cal.4th at pp. 1071-1072 [state law defining drug offenses and
penalties for those offenses fully occupied field and preempted local ordinance
imposing a penalty the state scheme excluded]; American Financial, supra,
34 Cal.4th at pp. 1254-1255 [state law regulating predatory lending
practices in home mortgage industry fully occupied field and preempted local
ordinance regulating predatory lending practices for mortgages not covered by
state law]; Lane, >supra, 58 Cal.2d at pp. 103-104
[state law regulating criminal aspects of sexual activity fully occupied field
and preempted local ordinance criminalizing specific acts state law did not
prohibit]; Abbott v. City of Los Angeles
(1960) 53 Cal.2d 674, 684-685 [Penal Code provisions requiring state to
collect data on criminals fully occupied field and preempted local ordinance
requiring criminals to register with local law enforcement].)  Accordingly, we conclude state law preempts
Section 3-18-3 because it fully occupies the field Section 3-18-3 regulates.href="#_ftn3"
name="_ftnref3" title="">[3]

The District Attorney contends state law does not preempt Section 3-18-3
because the two statutes Godinez cites as geographical restrictions on a sex
offender (§§ 626.81, 3053.8) are not enough to establish a comprehensive
scheme that fully occupies the field.href="#_ftn4" name="_ftnref4" title="">[4]  We do not find this argument
persuasive.  Adopting this overly narrow
and constricted definition of the relevant state law field would eviscerate the
implied preemption doctrine.  As
explained above, the proper field encompasses the restrictions imposed on a sex
offender’s daily life to reduce the risk he or she will commit another offense.  When all state laws from the relevant field
are considered, it is evident the Legislature created a multitude of regulations
patterned together to restrict a sex offender’s daily life.  Contrary to the District Attorney’s argument,
the Legislature’s intent to fully occupy a field is determined based on the
nature and scope of the statutes the Legislature adopts.  What counts is not the number of statutes
covering a tropic, but the substantive scope of the legislative scheme.  (Galvan,
supra, 70 Cal.2d at pp. 861‑862;
Baldwin, supra, 31 Cal.App.4th at p. 182.) 

The District Attorney also argues we should not employ a “‘preemption
by volume’ strategy” because many of the statutes in this field only focus on
sex offenders generally rather than the specific subject Section 3-18-3 addresses:  geographic
restrictions on sex offenders.  Although
presented under a different guise, this argument relies on the same improper
definition of the relevant field.  As
discussed above, implied preemption may not be based solely on the number of
statutes “unified by a single common noun.” 
(Galvan, supra, 70 Cal.2d at pp. 861-862 [“To approach the issue
of preemption as a quantitative problem provides no guidance in determining
whether the Legislature intends that local units shall not legislate concerning
a particular subject, and further confounds a meaningful solution to preemption
problems by offering a superficially attractive rule of preemption that
requires only a statutory nosecount”].)  Rather,
implied preemption exists when the state statutes are logically related and
establish a patterned approach to regulating an area that includes the local
ordinance’s subject matter.  (>Id. at p. 862; Fisher, supra,
37 Cal.3d at p. 708; Baldwin,
supra, 31 Cal.App.4th at
p. 182.)  Here, the Penal Code
sections at issue are all closely related and establish a patterned approach
for regulating a sex offender’s daily life to reduce the risk the offender will
commit another offense.  Section 3-18-3 invokes the same purpose in imposing geographical restrictions and
therefore it is preempted.  This analysis
is not based on a preemption by volume strategy, as the District Attorney
contends.

Next, the District Attorney argues the Penal Code sections discussed
above do not establish a legislative intent to preempt the field because some
of them include a provision stating, “Nothing in this section shall preclude or
prohibit prosecution under any other provision of law.”  (§§ 626.81, subd. (c); 653b,
subd. (e); 653c, subd. (e).)  According
to the District Attorney, this provision allows prosecution under local
ordinances regarding the subject of these statutes (sex offenders entering
schools, sex offenders loitering at schools or public places after being asked
to leave, and sex offenders entering day care or residential facilities for
elders and dependent adults) and therefore shows the Legislature did not intend
to preempt additional regulations of sex offenders.  The District Attorney is mistaken.

“‘[P]reemption by implication of legislative intent may not be found
when the Legislature has expressed its intent to permit local regulations.  Similarly, it should not be found when the
statutory scheme recognizes local regulations.’ 
[Citation.]”  (>Big Creek Lumber, >supra, 38 Cal.4th at p. 1157; >Abbott, supra, 53 Cal.2d at p. 683.)  These rules apply when the state expressly
authorizes or acknowledges local regulation on the subject.  For example, in Big Creek Lumber, the Supreme Court found state law regarding
timber harvesting did not preempt local zoning ordinances establishing the
permissible location for timber operations because state law expressly authorized
and deferred to local zoning authority concerning the location of timber
production zones.  (Big Creek Lumber, at pp. 1153, 1157.)  Similarly, in Great Western Shows, Inc. v. County of Los Angeles (2002)
27 Cal.4th 853, the Supreme Court found state law regulating gun shows did
not impliedly preempt a local ordinance banning shows on county-owned property
because the state law expressly required gun show operations to comply with all
local laws and regulations.  (>Id. at pp. 864-866; see also >Sherwin‑Williams, >supra, 4 Cal.4th at pp. 904-905.)  Here, the Penal Code sections on which the
District Attorney relies neither authorize nor acknowledge local regulation of
sex offenders.href="#_ftn5"
name="_ftnref5" title="">[5] 

The District Attorney next argues the Legislature’s declaration of
intent in section 290.03 does not establish an intent to preempt the field
of regulating sex offenders because the Legislature did not expressly state it
intended to occupy the field to the exclusion of local regulation.  According to the District Attorney, the Legislature
knew how to state its intent to preempt the field when it intended to do so
(see Govt. Code, § 53071.5 [“By the enactment of this section, the
Legislature occupies the whole field of regulation of the manufacture, sale, or
possession of imitation firearms . . . and that subdivision shall
preempt and be exclusive of all regulations relating to the manufacture, sale,
or possession of imitation firearms”]), and the mere declaration of a state
interest in a subject matter is not sufficient to fully occupy a field (see >Baldwin, supra, 34 Cal.App.4th at p. 175 [“[P]reemption cannot be
accomplished by a statute which merely declares that a field is preempted.  The Legislature may not preempt the exercise
of the police power negatively, merely by forbidding its exercise”]). 

This argument, however, fails to recognize that preemption may be
either express of implied.  (>American Financial, supra, 34 Cal.4th at p. 1261 [“Of course, by definition,
the Legislature’s implicit full occupation of a field occurs only when there is
no express intent in the state law”].) 
Moreover, section 290.03 does more than just express a state
interest in regulating sex offenders.  The
Legislature in section 290.03 declared the need for “a comprehensive system of risk assessment, supervision, monitoring
and containment for registered sex offenders residing in California
communities” and therefore created “a standardized,
statewide system to identify, assess, monitor and contain known sex
offenders.”  (§ 290.03, subds. (a)
& (b), italics added.)  Contrary to
the District Attorney’s contention, the Legislature did not declare an intent
to occupy the field but then fail to enact statutes occupying the field.  (See Baldwin,
supra, 34 Cal.App.4th at
p. 175.)  As explained above, the Legislature
enacted numerous statutes to occupy the field and its declared intent in
section 290.03 underscores that intent. 


The District Attorney also argues the Legislature’s express intent
in section 290.03 to create a standardized statewide monitoring system for
known sex offenders does not establish a legislative intent to fully occupy the
field because the Sex Offender Punishment, Control, and Containment Act of 2006
that enacted section 290.03 only added or amended one code section placing
geographical restrictions on sex offenders. 
According to the District Attorney, we must focus on what the
Legislature did—not what it said—and enacting one code section regulating where
sex offenders may go does not establish an intent to fully occupy the
field.  Again, the District Attorney
reaches this conclusion by viewing the Legislature’s statutory scheme through
the narrow prism of the local regulation, thereby ignoring the scope and
purpose of section 290.03.  As
explained above, the relevant state law field for our preemption analysis is
the regulation of a sex offender’s daily life. 
When the 2006 act is reviewed with that field in mind, the act amended
or added more than just one code section. 
(Stats. 2006, ch. 337, §§ 10, 11, 13-17, 19, 25, 27, 28,
47.)  The District Attorney’s argument
ignores the many other code sections regulating a sex offender’s daily life
that already existed in 2006 and additional regulations that have been added
since that time.  The 2006 act cannot be
viewed in isolation when considering the Legislature’s declared intent to
create a comprehensive, statewide system regulating sex offenders.

Finally, the District Attorney argues we should presume Section 3-18-3 is valid because it falls within the scope of local government’s
traditional police power.  The District
Attorney, however, fails to acknowledge when a presumption against preemption
properly arises and fails to show that presumption applies in this case.  California courts
will presume a local regulation is not preempted by state law when the local
regulation is in an “area” over which local government traditionally has
exercised control, but the mere exercise of a local government’s police power
is not sufficient to invoke the presumption against preemption.  (See City
of Riverside, supra,
56 Cal.4th at pp. 742‑743; Big
Creek Lumber, supra,
38 Cal.4th at pp. 1149, 1151.) 
Land use regulation is the classic example of an area in which a local
regulation is entitled to a presumption against preemption.  (City
of Riverside, at pp. 742-743; Big
Creek Lumber, at pp. 1149, 1151) 


There is no presumption against preemption when a local ordinance
regulates in an area historically dominated by state regulation.  (American
Financial, supra, 34 Cal.4th
at p. 1255; cf. Hood v. Santa Barbara
Bank & Trust (2006) 143 Cal.App.4th 526, 537 [“There is a general
presumption against preemption unless
the state regulates in an area where there has been a ‘significant federal
presence’” (italics added)].)  Moreover, “‘[w]hen
there is a doubt as to whether an attempted regulation relates to a municipal
or to a state matter, or if it be the mixed concern of both, the doubt must be
resolved in favor of the legislative authority of the state.’  [Citations.]” 
(State Building> & Construction Trades
Council of California v. City of >Vista (2012) 54 Cal.4th 547, 582.) 


Sex offender registration is an area the state has traditionally
regulated.  The Penal Code has included a
“comprehensive scheme” regarding sex offender registration since 1947, when the
Legislature first enacted section 290 to require sex offenders to register
with local law enforcement by providing a written statement, fingerprints, and
a photograph.  (Wright v. Superior Court (1997) 15 Cal.4th 521, 526; Stats.
1947, ch. 1124, § 1, pp. 2562-2563; see Abbott, supra,
53 Cal.2d at pp. 676, 684 [1960 Supreme Court decision holding state
law fully occupies the field of criminal registration for all types of
offenses, not just sex offenses].)  Since
at least 1982, the Penal Code also has included limitations on a sex offender’s
ability to visit certain places.  (See
Stats. 1982, ch. 1308, p. 4818, § 1 [prohibiting a sex offender from
entering a school unless he or she is a parent of a student or has written
permission].)  As explained above, the
Legislature also has enacted many other restrictions on a sex offender’s daily
life in the ensuing years.  The District
Attorney, however, fails to cite any local efforts to regulate sex offenders other
than Section 3-18-3 and similar ordinances
several Orange County cities have adopted since late 2010.href="#_ftn6" name="_ftnref6" title="">[6]  Accordingly, the presumption
against state preemption does not apply to Section 3-18-3.

Amicus Curiae City of Tustin argues that
the regulation of parks is an area local governments traditionally have controlled
and therefore we should presume state law does not preempt Section 3-18-3.  Section 3-18-3, however, does not regulate parks; it regulates sex offenders.  Indeed, Section 3-18-3’s
declared purpose and intent is “to provide additional restrictions beyond those
provided for in state law by restricting sex offenders from certain limited
locations, and by allowing for criminal penalties for violations of this
article.”  (Orange County Code, § 3-18-1.)  Accordingly, Section 3-18-3 attempts to supplement state law regulations on sex offenders.  But neither the District Attorney nor the
City of Tustin cite any authority showing regulation of sex offenders is an
area local governments traditionally have controlled. 

C.        State Law Impliedly Preempts Section 3-18-3> Based on Its Implicit
Registration Requirement

In addition to its prohibition against a sex offender entering
Orange County Parks without written permission, Section 3-18-3 also regulates a sex offender’s duty to register with local law
enforcement.  Implicit in the ordinance’s
written permission requirement is the obligation to apply to the Orange County
Sheriff if a sex offender wishes to visit an Orange County Park.  Section 3-18-3
does not establish a procedure for a sex offender to obtain the required permission,
but presumably the offender at least must provide identification and contact
information to the Sheriff, explain why he or she wants to enter a specific Orange County Park, and
identify the sex offense for which he or she was convicted.href="#_ftn7" name="_ftnref7" title="">[7]  That is a de facto
registration requirement that goes beyond the Penal Code’s standardized registration
requirements for sex offenders and therefore constitutes an independent ground
for finding state law preempts Section 3-18-3.

As explained above, sex offender registration is an area the state
has traditionally regulated since 1947, when the Legislature placed in the
Penal Code a “comprehensive scheme” regarding sex offender registration.  (Wright,
supra, 15 Cal.4th at p. 526;
Stats. 1947, ch. 1124, § 1, pp. 2562-2563.)  Other than Section 3-18-3 and similar
ordinances several Orange County cities recently adopted, the District Attorney
fails to cite any examples of local governments legislating in the sex offender
registration domain.  (See >American Financial, supra, 34 Cal.4th at p. 1255 [in determining whether
Legislature intended to impliedly preempt field, courts must consider whether
the subject matter was historically controlled by state regulation].)  

More than 50 years ago, the California Supreme Court held state law fully
occupied the field of criminal registration for all types of offenses, not just
sex offenders.  (Abbott, supra, 53 Cal.2d
at pp. 676, 684.)  In >Abbott, the City of Los Angeles enacted
an ordinance that made it unlawful for any person convicted of a felony or
certain identified misdemeanors to remain in the city for more than five days
without registering with the police chief. 
(Id. at p. 676 &
fn. 1.)  Although section 290
was the only Penal Code section that required a person convicted of any type of
crime to register with local law enforcement, the Abbott court found section 290, combined with other Penal Code
sections, fully occupied the entire field of criminal registration.  Those other Penal Code sections required the
state to maintain files and identifying information about offenders who
committed certain crimes, which allowed the state to monitor them in the same way
as the registration requirements section 290 imposed.  (Abbott,
at pp. 684‑687.)  Accordingly,
the Supreme Court concluded, “An examination of the Penal Code . . .
indicates that the state Legislature has preempted the very field of
registration as a means of apprehension of criminals.  This it has done by expressly requiring
registration in some instances and by inferentially rejecting it in others.  Thus, in this basic respect the state statutes
and the local ordinance are in conflict [and the state statutes therefore
preempt the local ordinance requiring criminal registration].”  (Id.
at p. 685.)

In its current form, California’s Sex Offender Registration Act (§§ 290 to 290.024) establishes
a more detailed and comprehensive statutory scheme than section 290 established
when the Supreme Court decided Abbott.  The current act defines a sex offender’s
lifetime duty to register with local law enforcement for each city or county in
which he or she regularly resides (§§ 290, subd. (b), 290.010); who must
register as a sex offender (§§ 290, subd. (c), 290.001-290.009); the
information law enforcement personnel must provide to a sex offender regarding
his or her duty to register (§ 290.017); the information a sex offender
must provide when registering (§§ 290.015, 290.016); a sex offender’s duty
to update his or her registration annually and also within five working days of
any change in his or her residence or name (§§ 290.012-290.014); how and
with whom a transient sex offender must register (§ 290.011); and
misdemeanor and felony punishment for a sex offender who fails to properly
register (§ 290.018).  Other Penal
Code sections also require a sex offender to register with campus police when he
or she enrolls or works at any college or university regardless of where the
sex offender resides (§ 290.01) and require the state to maintain a Web
site and otherwise publicly disclose certain information regarding all
registered sex offenders (§§ 290.4, 209.45, 290.46). 

These provisions “‘are so extensive in their scope that they clearly
show an intention by the Legislature to adopt a general scheme for the
regulation of’” sex offender registration. 
(American Financial, >supra, 34 Cal.4th at
pp. 1254-1255; Lane, >supra, 58 Cal.2d at
pp. 103-104; see also O’Connell,
supra, 41 Cal.4th at
pp. 1071-1072; Abbott, >supra, 53 Cal.2d at
pp. 684-685.)  Accordingly, we
conclude state law impliedly preempts Section 3-18-3
based on the implicit registration requirement it imposes on sex offenders who
wish to enter an Orange County Park.

The District Attorney contends the Penal Code provisions on sex
offender registration do not preempt Section 3-18-3 because the
ordinance does not include an implicit registration requirement analogous to
the Penal Code’s registration requirement. 
According to the District Attorney, the Penal Code provisions require
all sex offenders to register with local law enforcement based solely on a
disability suffered in the past—a conviction for one or more enumerated sex
offenses.  In contrast, the District
Attorney contends Section 3-18-3 is merely a prospective licensing or permit
provision that allows sex offenders to obtain permission to voluntarily engage
in a specific activity in which they otherwise would not be allowed to engage—entering
an Orange County Park where children regularly gather. 

The District Attorney relies on Cohen
v. Board of Supervisors (1985) 40 Cal.3d 277 (Cohen).  There, a city
ordinance required anyone who wanted to operate an escort service to obtain a
permit by applying to the city, paying a fee, and providing certain identifying
and background information.  (>Id. at pp. 284-285.)  A taxpayer challenged the ordinance on preemption
grounds, arguing the ordinance “impermissibly seeks to regulate the criminal
aspects of sexual conduct, an area of legislation preempted by state law
through our Penal Code.”  (>Id. at p. 290.)  The Supreme Court rejected this challenge
because it viewed the ordinance as merely a business regulation requiring
escort services to obtain a permit before conducting business within the city,
not an attempt to regulate the criminal aspects of sexual activity.  Because no state law provision regulated
escort services or their licensing, the Cohen
court found the ordinance was a valid exercise of the city’s licensing power
and was not preempted by state law.  (>Id. at pp. 295-296.)

>Cohen is readily distinguishable.  Section
3-18-3 is not a licensing or permit regulation like the ordinance in >Cohen; it is a sex offender
regulation.  The ordinance in >Cohen applied to anyone who wanted to
operate an escort service, but Section 3-18-3 only
applies to sex offenders.  No one who
wants to enter an Orange County Park is required to apply to the Orange County Sheriff for permission
other than sex offenders.  As explained
above, Section 3-18-3’s declared intent is “to
provide additional restrictions beyond those provided for in state law by restricting
sex offenders from certain limited locations.” 
(Orange County Code, § 3-18-1.) 

Moreover, Cohen found the
city’s ordinance was not preempted because state law did not include a
provision regulating escort services or requiring them to obtain a license or
permit.  Here, the Penal Code includes
numerous provisions that require sex offenders to register with law enforcement
in the city where they reside.  Section 3‑18‑3
effectively includes an additional registration requirement because it requires
any sex offender who wants to visit an Orange County Park to apply to the
Orange County Sheriff, provide identification and contact information, explain
why he or she wants to enter a specific park, and provide information regarding
the sex offense for which he or she was convicted.  This requirement effectively requires sex
offenders who want to enter an Orange County Park to
register with a law enforcement agency in addition to the police department for
the city in which they reside by providing much of the same information.  Accordingly, we conclude the written permission
requirement is a de facto or implicit registration requirement preempted
by Penal Code registration requirements.

Finally, the District Attorney argues we need not invalidate Section 3‑18‑3
in its entirety if we conclude state law preempts the written permission
requirement in the ordinance.  According
to the District Attorney, we may sever the written permission requirement and
allow the remainder of Section 3-18-3 to remain as an outright
ban on all sex offenders entering an Orange County Park where
children regularly gather.  We decline to
do so. 

When part of a local ordinance is preempted or otherwise invalid, local
officials may enforce the remainder of the ordinance if the preempted or
invalid part can be severed.  (>Hotel Employees & Restaurant Employees
Internat. Union v. Davis (1999) 21 Cal.4th 585, 613 (Hotel Employees).)  A
preempted or invalid part of an ordinance “can be severed if, and only if, it
is ‘grammatically, functionally and volitionally separable.’  [Citation.]” 
(Ibid.)  If the ordinance “‘is not severable, then the
void part taints the remainder and the whole becomes a nullity.’”  (Santa
Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330 (>Santa Barbara); Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 747.)

The invalid part “‘is “grammatically” separable if it is “distinct”
and “separate” and, hence, “can be removed as a whole without affecting the
wording of any” of the measure’s “other provisions.”  [Citation.] 
. . .’ 
[Citation.]”  (>Jevne v. Superior Court (2005)
35 Cal.4th 935, 960-961 (Jevne);
Hotel Employees, supra, 21 Cal.4th at p. 613.)  “To be grammatically separable, the valid and
invalid parts of the statute can be separated by paragraph, sentence, clause,
phrase, or even single words.”  (>Abbott Laboratories v. Franchise Tax Bd.
(2009) 175 Cal.App.4th 1346, 1358 (Abbott
Laboratories).)  Here, Section
3-18-3’s preempted written permission requirement is grammatically separable
because the clause “without written permission from the Orange County Sheriff
or Sheriff’s designee” can be removed and Section 3-18-3 would then be an
outright ban that reads as follows:  “Any
person required to register pursuant to California Penal Code section 290,
et seq. who enters into or upon any Orange County Park where children regularly
gather . . . is guilty of a misdemeanor.”  (§ 3-18-3.) 

“To be functionally separable, the remainder after separation of the
invalid part must be ‘“‘complete in itself’”’ and ‘capable of independent
application.’  [Citation.]”  (Abbott
Laboratories, supra,
175 Cal.App.4th at p. 1358.)  An
invalid portion of an ordinance “‘is “functionally” separable if it is not
necessary to the measure’s operation and purpose.  [Citation.] 
. . .’ 
[Citation.]”  (>Jevne, supra, 35 Cal.4th at p. 961; Hotel Employees, supra,
21 Cal.4th at p. 613.)  Here,
Section 3-18-3 is complete in itself and capable of independent application
after the written permission requirement is removed, but whether that
requirement is necessary to Section 3-18-3’s operation and purpose is more
problematic.  As we explain below,
nothing in Section 3‑18‑3 suggests Orange County intended
to adopt a complete ban on sex offenders entering an Orange County Park, but that
is what Section 3-18-3 would require if we sever
the written permission requirement. 

“To be volitionally separable, ‘[t]he final determination depends on
whether “the remainder . . . is complete in itself and would have
been adopted by the legislative body had the latter foreseen the partial
invalidation of the statute” . . . or “constitutes a completely
operative expression of the legislative intent[.]”’  [Citation.]” 
(Abbott Laboratories, >supra, 175 Cal.App.4th at
p. 1358.)  An invalid portion of an
ordinance “‘is “volitionally” separable if it was not of critical importance to
the measure’s enactment.  [Citation.]’  [Citation.]”  (Jevne,
supra, 35 Cal.4th at
p. 961; Hotel Employees, >supra, 21 Cal.4th at p. 613.)  Whether the ordinance includes a severability
clause is a significant consideration in deciding whether the invalid portion
is volitionally separable because the clause expresses the legislative body’s
intent that any invalid portion of the ordinance should be severed to the
extent possible.  (Gerken v. Fair Political Practices Com. (1993) 6 Cal.4th 707,
714 (Gerken) [“‘“Although not
conclusive, a severability clause normally calls for sustaining the valid part
of the enactment, especially when the invalid part is mechanically severable”’”].)  “Such a clause plus the ability to
mechanically sever the invalid part while normally allowing severability, does
not conclusively dictate it.”  (>Santa Barbara, supra, 13 Cal.3d at p. 331; Abbott Laboratories, supra,
175 Cal.App.4th at p. 1357.) 
To find the invalid portion volitionally separable, we must conclude the
remainder of the ordinance is complete in itself and would have been adopted by
the legislative body had it foreseen the constitutional invalidity of the specific
severed provision.  (Gerken, at p. 714; Santa
Barbara, at p. 331; Abbott
Laboratories, at p. 1357.)

Here, the ordinance adopting Section 3-18-3
includes a severability clause declaring Orange County intended
to sever any invalid portion of the ordinance because the county would have
adopted the ordinance without the invalidated provision.href="#_ftn8" name="_ftnref8" title="">[8]  We nonetheless conclude the
written permission requirement is not volitionally separable because the
District Attorney fails to demonstrate, either by the ordinance’s express terms
or its history, Orange County intended a complete and outright ban against sex
offenders entering an Orange County Park, no matter the circumstances.  An invalid portion of an ordinance is
volitionally separable if the remainder of the ordinance reflects a substantial
portion of the legislative body’s purpose in passing the ordinance.  (Gerken,
supra, 6 Cal.4th at
p. 715