Filed 9/24/13 Hall v. Harris CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



RICHARD GORDON HALL,                                                D062804

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. MCR11177)

KAMALA D. HARRIS, as Attorney General,
etc.,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Amalia L.

Meza, Judge. Affirmed.


         Kurt D. Hermansen, under appointment by the Court of Appeal, for Plaintiff and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Marvin E.

Mizell, Deputy Attorneys General, for Defendant and Respondent.
       In mandamus proceedings before the trial court, the court relieved Richard Hall of

the mandatory lifetime sex offender registration requirement arising from his sex offense

conviction, but imposed the discretionary lifetime registration requirement. On appeal,

Hall argues the trial court's decision to impose the discretionary registration requirement

violates Apprendi1 and ex post facto principles because the registration requirement now

incorporates a punitive residency restriction. He requests that we reverse the order

imposing the discretionary registration requirement, or alternatively, that we direct the

trial court to issue an order declaring he is not subject to the statutory residency

restriction applicable to sex offender registrants.

       On appeal, the People maintain that the statutory residency restriction does not

apply to Hall because he is a probationer, not a parolee. On this record, we accept the

People's concession and do not decide the underlying issues presented in this appeal.

Accordingly, we construe the judgment as not imposing the statutory residency restriction

and affirm.




1      Apprendi v. New Jersey (2000) 530 U.S. 466.

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                                     BACKGROUND

         A. Sex Offender Registration Requirements and Residency Restrictions

       The Penal Code allows for the imposition of a lifetime registration requirement on

sex offenders. (Pen. Code, § 290 et seq.)2 The registration requirement 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 court must find that the defendant "committed

the offense as a result of sexual compulsion or for purposes of sexual gratification[,]" and

must "state on the record the reasons for its findings and the reasons for requiring

registration." (§ 290.006.)

       When Proposition 83 (Jessica's Law) was passed in 2006, the Penal Code was

amended to add a residency restriction applicable to sex offender registrants. (See In re

E.J. (2010) 47 Cal.4th 1258, 1263 (E.J.).) The section, which is included in a portion of

the Penal Code addressing parolees, provides in relevant part as follows: "(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 were children regularly gather." (§ 3003.5, subd. (b).) The statute

also prohibits sex offender registrants from living in a single family dwelling with other

unrelated sex offender registrants and allows municipalities to enact additional residency



2      Subsequent unspecified statutory references are to the Penal Code.
                                             3
restriction ordinances.3 To implement this residency restriction, a state regulation

concerning parolees now provides: "A person released on parole on or after November 8,

2006, who is required to register pursuant to PC sections 290 through 290.023, inclusive,

shall not reside within 2,000 feet of any public or private school, kindergarten through

12th grade, or park where children regularly gather." (Cal. Code Regs., tit. 15, § 3571,

subd. (c).)

                     B. Mandate Proceedings Before the Trial Court

       In 1991, Hall pled guilty to violating section 288a, subdivision (a)(2), oral

copulation by a defendant over age 21 against a victim under age 16. Hall was given a

suspended prison sentence and placed on probation. Because his offense was listed as an

offense requiring mandatory registration, the court imposed the mandatory registration

requirement. Hall's probation ended in 1994. In 2010, he pled guilty to failing to register

and he was granted probation.




3      Section 3003.5 states: "(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."

                                             4
       Meanwhile, in 2006 the California Supreme Court ruled the mandatory

registration requirement for certain sex offenders violated equal protection principles

given that similarly situated sex offenders were not subject to the mandatory requirement.

(People v. Hofsheier (2006) 37 Cal.4th 1185, 1206-1207.) Based on this authority, in

October 2011 Hall filed the writ of mandate petition in superior court that is currently

before us on appeal. The trial court granted his request that he be relieved from the

mandatory registration requirement. However, the court rejected Hall's claim that, under

Apprendi principles, he could not be subjected to the discretionary registration

requirement absent a jury finding (or admission) of the requisite facts for imposition of

the discretionary requirement. The court concluded the registration requirement was not

punitive and thus Apprendi did not apply. Following an evidentiary hearing, the court

found Hall's 1991 offense was sexually motivated and he could still pose a danger to the

public, and imposed the discretionary registration requirement.

       Although Hall was still on probation at the time of the mandate proceedings for his

failure to register conviction in 2010, the record on appeal does not set forth the details of

his probation conditions. Of particular relevance here, there is nothing indicating

whether the authorities were requiring Hall to adhere to the statutory residency

restriction. Further, Hall and the prosecutor mentioned the statutory residency restriction

in written pleadings discussing whether the registration requirement was punitive, but the

court made no mention of the residency restriction when it ruled the registration




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requirement was not punitive and hence not subject to Apprendi.4 Additionally, when

the court issued its ruling finding that the facts of the underlying predicate crime

warranted imposition of the discretionary registration requirement, the court ordered Hall

to comply with the registration requirement, but again made no mention of the residency

restriction.

                                        DISCUSSION

       When the state imposes a punishment on a defendant, several constitutional rights

or restrictions are triggered, including (1) the Apprendi right to have the jury, not the trial

judge, decide all facts that increase the penalty beyond the maximum punishment

authorized for the offense, and (2) the ex post facto prohibition on retroactive application

of a law to events that occurred before enactment of the law. (People v. Picklesimer

(2010) 48 Cal.4th 330, 343-344 (Picklesimer); E.J., supra, 47 Cal.4th at p. 1279.)

       The California Supreme Court has determined that the lifetime sex offender

registration requirement is not a punitive consequence; hence, it is well established that

the registration requirement (standing alone) does not implicate Apprendi or ex post facto

principles. (People v. Castellanos (1999) 21 Cal.4th 785, 788, 795-796 [no ex post facto

violation due to nonpunitive nature of registration requirement]; People v. Presley (2007)



4       Hall argued the discretionary registration requirement had become punitive
because of various statutory augmentations to the law, including the 2006 enactment of
the residency restriction. The People argued the registration requirement had not been
rendered punitive due to the statutory residency restriction because "the constitutionality
of the residency requirement is currently being litigated . . . ."
                                               6
156 Cal.App.4th 1027, 1032-1033 [no Apprendi violation due to nonpunitive nature of

registration requirement].) As explained in Castellanos, the registration requirement is

not punitive in intent or effect because it is designed as a regulatory measure (i.e., to

control crime and prevent recidivism by making sex offenders readily available for police

surveillance), and the burden it imposes (although substantial) is "no more onerous than

necessary to achieve the purpose of the statute." (Castellanos, supra, 21 Cal.4th at p.

796.)

        Further, the California Supreme Court has determined that when the residency

restriction applicable to sex offender registrants is imposed as a statutory condition of

parole "it does not additionally punish for the sex offense conviction" that gave rise to

the lifetime registration requirement. (E.J., supra, 47 Cal.4th at p. 1280.) Rejecting an

ex post facto challenge, the E.J. court reasoned that imposition of the residency

restriction on parolees who were released from prison after the statute's effective date did

not constitute retroactive application of a punishment for the underlying sex offense, but

rather constituted a prospective response to the offenders' noncompliant residency

conduct during the parole period. (Id. at pp. 1279-1280.)

        However, the E.J. court did not resolve whether the statutory residency restriction

applied to offenders other than parolees, nor whether the residency restriction is a

punitive consequence for the sex offense if it is imposed beyond the parole period; i.e., as

a lifetime restriction automatically accompanying, by operation of law, the lifetime




                                              7
registration requirement.5 In a decision subsequent to E.J., the California Supreme Court

recognized that in contexts distinct from the E.J. case, the punitive nature of the

residency restriction was unresolved, but it did not decide the issue because it was not

necessary to do so given the posture of the case before it. (Picklesimer, supra, 48 Cal.4th

at pp. 343-344.) The issue Hall raises here—the punitive nature of the statutory

residency restriction imposed outside of the parole context (presumably for a lifetime)—

is currently pending before the California Supreme Court in People v. Mosley (2010) 188

Cal.App.4th 1090, review granted January 26, 2011, S187965.6

       The Attorney General's primary position in this appeal is that the residency

restriction set forth in section 3003.5, subdivision (b) applies solely to parolees, and

hence it is inapplicable to Hall because he is not a parolee. In his reply brief, Hall states




5       The E.J. court noted that it was not faced with the question of whether the
residency restriction statute creates a new misdemeanor offense applicable to all
registered sex offenders regardless of parole status. (E.J., supra, 47 Cal.4th at p. 1271,
fn. 5.) The E.J. court stated that it was clear the residency restriction was intended to
apply as a condition of parole, noting that the provision was located in the Penal Code
chapter addressing parole, and the Legislative Analyst had told voters that a violation of
the provision would constitute both a parole violation and a misdemeanor offense. (Id. at
p. 1271.)

6       In Mosley, the defendant received a jail sentence, and the discretionary lifetime
sex offender registration requirement was imposed as part of his sentence. The appellate
court apparently construed the statutory residency restriction as part of the sentence by
operation of law and as lasting for a lifetime, and found it to be punitive.
        Our high court has also placed several cases on "grant and hold" status pending its
decision in Mosley. (People v. Hass, review granted Mar. 14, 2012, S199833 [residency
restriction is punitive]; In re J.L. (2010) 190 Cal.App.4th 1394, review granted Mar. 2,
2011, S189721 [same]; In re S.W., review granted Jan. 26, 2011, S187897 [residency
restriction is not punitive].)
                                              8
that if we accept the Attorney General's concession that the residency restriction does not

apply to him, we need not reach his constitutional challenges.

       The record on appeal shows the trial court did not refer to the residency restriction

when imposing the discretionary registration requirement on Hall, and there is nothing

indicating the residency restriction has ever been imposed on Hall by the authorities. The

Attorney General in effect concedes that, because Hall was not sentenced to prison and

will not be a parolee, the statutory residency restriction does not apply to him by

operation of law upon imposition of the registration requirement. Under these

circumstances and without deciding the issue, we accept the People's concession that

Hall's status as a sex offender registrant does not automatically subject him to the

residency restriction under section 3003.5, subdivision (b). (See Picklesimer, supra, 48

Cal.4th at pp. 341-342 [court accepts People's concession, without deciding the issue, that

defendant is not subject to mandatory registration requirement]; In re James F. (2008) 42

Cal.4th 901, 911.) Accordingly, we need not reach the issues of whether the statutory

residency restriction applies by operation of law to sex offender registrants who are

probationers rather than parolees; whether the residency restriction lasts a lifetime as an

adjunct of the lifetime registration requirement; nor whether the statutory residency

restriction (outside of the parole context) is punitive in nature so as to implicate ex post

facto and/or Apprendi constitutional concerns. The California Supreme Court will likely

provide guidance on these issues when it renders its decision in the pending Mosley case,

but we need not address them given the People's concession in this case.



                                              9
       Hall requests that we reverse the judgment and direct the trial court to issue a writ

ordering the People not to enforce the statutory residency restriction against him. This is

not necessary. The trial court's order only requires Hall to comply with the registration

requirement, and it makes no mention of the residency restriction. Based on our

acceptance of the People's concession that the statutory residency restriction is not

applicable to Hall, we do not construe the trial court's order as imposing (by operation of

law) the statutory residency restriction in conjunction with the lifetime registration

requirement.

                                      DISPOSITION

       The judgment is affirmed.




                                                                                HALLER, J.

WE CONCUR:



HUFFMAN, Acting P. J.



AARON, J.




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