People v Mosley

This decision was overturned on 3-2-15 in the appeal People v Mosley. (pg-35 --- Conclusion: The judgment of the Court of Appeal is reversed insofar as it modified defendant‘s conviction by striking the sex offender registration requirement, and is otherwise affirmed.)

9-29-2010 California:
People v Mosley(REVERSED on Appeal)
116 Cal. Rptr. 3d 321q

We revisit defendant Steven Lloyd Mosley, who a jury acquitted of any sexual offense. The jury found him guilty only of misdemeanor assault. Yet the court ordered defendant to register as a sex offender based upon its own factual findings about his motivations—facts not proved beyond a reasonable doubt to the jury.

In a prior opinion, we held the facts supporting imposition of discretionary sex offender registration must be found beyond a reasonable doubt by a jury. Defendant has the right to a jury trial on any facts (other than a prior conviction) that increase his offense's penalty beyond the statutory maximum.

(Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi).) The court's imposition of sex offender registration for misdemeanor assault effectively increased the penalty beyond the statutory maximum because of Jessica's Law, The Sexual Predator Punishment and Control Act, approved in 2006 as Proposition 83. Jessica's Law contains a residency restriction that bars registered sex offenders from residing within 2,000 feet of a school or park where children gather. This residency restriction constitutes punishment due to its overwhelmingly punitive effect.

The California Supreme Court directed that we reconsider the matter in light of In re E.J. (2010) 47 Cal.4th 1258 [104 Cal.Rptr.3d 165, 223 P.3d 31] (E.J.), which addressed the imposition of the residency restriction as a parole condition. The Supreme Court held the residency restriction applied prospectively to four registered sex offenders paroled after passage of Jessica's Law. When imposed as a new parole condition on a person who already registered as a sex offender, the residency restriction "does not additionally punish for the [underlying] sex offense conviction . . . ." (47 Cal.4th at p. 1280.) But the Supreme Court had "no occasion . . . to address whether the 2,000-foot residency limit might apply . . . to the thousands of persons subject to sex offender registration who, for whatever reason, are not currently on parole." (Id. at p. 1285 (conc. opn. of Werdegar, J.), citations omitted.) Thus, it did not consider whether the residency restriction constitutes increased punishment for an offense when a trial court imposes discretionary sex offender registration as part of the sentence on that offense.

(1) We leave the substance of the sex offender registration scheme untouched. Courts may impose discretionary sex offender registration; registered sex offenders may be subject to the residency restriction. We hold only that imposing the residency restriction through discretionary sex offender registration as part of the sentencing on the underlying offense increases the penalty for that offense beyond the statutory maximum. Accordingly, the facts supporting the imposition of the registration requirement must be found true by a jury beyond a reasonable doubt. That was not done here, so we modify the judgment by striking the sex offender registration requirement, and affirm.

See Also: Recent Changes in the Law Potentially Beneficial for Clients