P. v. Hardy
Filed 8/2/12 P. v. Hardy CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
OWEN JOHN
HARDY,
Defendant and Appellant.
A132454
(Solano County
Super. Ct. No. FCR270501)
Owen John Hardy
(appellant) pleaded no contest to possession
of child pornography. On appeal, he
contends that the trial court was unaware of its discretion not to order or to
stay the residency restriction requirement for registered sexual offenders
(Pen. Code, § 3003.5, subd. (b)),
and that the restriction applies only to parolees. He also argues that the restriction
constitutes unconstitutional punishment.
Respondent is in agreement that the residency requirement applies only
to parolees. We agree with the parties
that this residency requirement is inapplicable to probationers such as
appellant, and shall therefore remand the matter to the trial court with
directions to strike the order containing the residency restriction.
Appellant
was charged by information with one count of possession of child pornography
(§ 311.11, subd. (a)). He
thereafter pleaded no contest to the charge.
On
June 20, 2011, the trial court placed appellant on formal probation for
three years. The court further ordered
appellant to serve 90 days in county jail and to register as a sex offender,
pursuant to section 290. Among the
numerous additional conditions of probation, appellant was ordered, pursuant to
section 3003.5, subdivision (b), “not to reside within 2000 feet of any public or private school, or
park where children regularly gather.”
On
June 23, 2011, appellant filed a notice of
appeal.
Appellant
challenges the trial court’s order, made pursuant to section 3003.5,
subdivision (b), that he not reside within 2000 feet of a school or
park. Respondent agrees that the court
abused its discretion when it made this order because section 3003.5,
subdivision (b), applies only to parolees.
re E.J. (2010) 47 Cal.4th 1258, 1277-1279 [affirming applicability of
section 3003.5, subd. (b)’s residency restriction to four parolees on
parole for subsequent, nonsexual offenses].)
The
Sexual Predator Punishment and Control Act:
Jessica’s Law (§ 3003.5, subd. (b)), was added by
Proposition 83, as approved by voters on November 7, 2006. (See People
v. Picklesimer (2010) 48 Cal.4th 330, 344.) Subdivision (b) was added to former
section 3003.5 (now section 3003.5, subd. (a)), which contains
another residency restriction for parolees.
Although Jessica’s Law amended several sections of the Penal and Welfare
and Institutions Codes, its drafters placed this provision restricting
residency in the parole section of the Penal Code (pt. 3, tit. 1,
ch. 8, § 3000 et seq.).
Amended
section 3003.5 provides:
“(a) Notwithstanding
any other provision of law, when a person is released on parole after having
served a term of imprisonment in state prison for any offense for which
registration is required pursuant to Section 290, that person may not, during
the period of parole, reside in any single family dwelling with any other
person also required to register pursuant to Section 290, unless those
persons are legally related by blood, marriage, or adoption. For purposes of this section, ‘single family
dwelling’ shall not include a residential facility which serves six or fewer
persons.
“(b) 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.
“(c) Nothing
in this section shall prohibit municipal jurisdictions from enacting local
ordinances that further restrict the residency of any person for whom
registration is required pursuant to Section 290.”
Based
on its language, subdivision (b) of section 3003.5 could be
construed, in isolation, to apply literally to “any person,” and not just
parolees. We find, however, that,
looking at the statute as a whole and its location within the parole section of
the Penal Code, the drafters’ intent to limit the residency restriction’s
application to a “person” identified in subdivision (a), i.e., a parolee,
is evident. (See Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [“The meaning
of a statute may not be determined from a single word or sentence; the words
must be construed in context, and provisions relating to the same subject
matter must be harmonized to the extent possible”].)
Accordingly,
since appellant is a probationer rather than a felony parolee, we conclude that
he is not subject to the residency restriction contained in
section 3003.5, subdivision (b).
Because the trial court abused its discretion when it imposed the
residency restriction as a condition of probation, that condition must be
stricken.
The
matter is remanded to the trial court with directions to strike the order
containing the residency restriction, imposed pursuant to subdivision (b)
of section 3003.5, and to correct the abstract of record, consistent with
the views expressed herein. In all other
respects, the judgment is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Richman, J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title=""> [2] Because
the facts underlying appellant’s no contest plea are not necessary to the
resolution of the issues raised on appeal, we will not recount them here.
