Filed 1/25/16 In re J.L. CA4/2




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re J.L., a Person Coming Under the
Juvenile Court Law.
                                                                       G040507
THE PEOPLE,
                                                                       (Super. Ct. No. DL009632)
     Plaintiff and Respondent,
                                                                       OPINION
         v.

J.L.,

     Defendant and Appellant.

                   Appeal from a judgment of the Superior Court of Orange County, Donna L.

Crandall, Judge. Affirmed.
                   Paul R. Ward and Leslie Ann Rose, under appointment by the Court of
Appeal, for Defendant and Appellant.

                   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Gary W. Schons, Assistant Attorney General, Janet Neeley and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

                                          *                  *                  *
              J.L. appeals from the juvenile court’s adjudication sustaining allegations he

committed four lewd and lascivious acts with three children, beginning when he was a

preteen. (Welf. & Inst. Code, § 602; Pen. Code, § 288, subd. (a), all further statutory

references are to the Penal Code.) The adjudication subjects him to far-reaching

residency restrictions (§ 3003.5, subd. (b)) under Jessica’s Law (Proposition 83) for the

remainder of his life. (§ 290, subd. (b); see In re Taylor (2015) 60 Cal.4th 1019, 1039

[§ 3003.5(b) “effectively barred petitioners access to approximately 97 percent of the

multifamily rental housing units in San Diego County”]; Cal. Sex Offender Management

Bd., Homelessness Among Cal. Registered Sex offenders: An Update (Sept. 2011) p. 7

[“the vast majority of potential housing locations in urban areas are now . . . off-limits”].)

              Jury trials are generally unavailable in juvenile adjudications under

McKeiver v. Pennsylvania (1971) 403 U.S. 528 (McKeiver), based on the rehabilitative

nature of such proceedings. In a prior opinion, we noted section 3003.5(b) affords no

exception for rehabilitated juveniles, and we concluded its severe restrictions were

punitive in nature and effect. The punitive consequences include potential homelessness

and rendering the minor a de facto orphan if the juvenile lives in an exclusion zone and

his or her parents cannot or do not move. We observed under high court precedent that
the constitutional interest in a jury trial includes requiring community participation in the

form of a jury trial before severe punishment is imposed. (E.g., McKeiver; Duncan v.

Louisiana (1968) 391 U.S. 145.) Finding the residency restrictions severely punitive in

practical effect, we concluded a jury trial is necessary before imposing those

consequences, particularly on a juvenile. Accordingly, we held denial of the right to a

jury trial here violated due process and equal protection, and therefore the residency

restrictions must be enjoined as to J.L., absent a jury trial on remand.



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              The Supreme Court granted review, and now has returned the matter for

reconsideration in light of People v. Mosley (2015) 60 Cal.4th 1044 (Mosley). There, a

jury acquitted the adult defendant of committing a lewd act on a child under the age of

14, but convicted him of simple assault. At sentencing, the trial court found the

defendant “‘committed the offense as a result of sexual compulsion or for purposes of

sexual gratification,’” and therefore ordered him to register as a sex offender (§ 290.006),

which subjected him to section 3003.5(b)’s residency restrictions. (Mosley, at p. 1077.)

A majority in Mosley concluded the trial court’s factfinding concerning the defendant’s

intent and resulting discretionary registration order did not run afoul of Apprendi v. New

Jersey (2000) 530 U.S. 466 (Apprendi) [defendant entitled to a jury determination of

facts increasing punishment beyond statutory maximum for underlying conviction].

              Relying on Oregon v. Ice (2009) 555 U.S. 160 [Apprendi does not preclude

traditional judicial imposition of consecutive rather than concurrent sentences], the

Supreme Court in Mosley held that because “residency restrictions and underlying sex

offender registration requirements are modern regulatory sentencing imperatives . . . in

which juries have played no historical role, [they] do not implicate the Sixth Amendment

jury trial guarantee . . . .” (Mosley, supra, 60 Cal.4th at p. 1060.) Alternatively, the court
concluded the residency restrictions do not constitute punishment, and therefore do not

implicate the Sixth Amendment right to a jury trial before they are imposed. (Id. at

pp. 1062-1069.)

              Both these rationales independently require affirming the residency

restrictions imposed here without a jury adjudication. First, the residency restrictions and

underlying sex offender registration requirement are modern sentencing innovations for




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juveniles no less than adults, and therefore are inapt under Ice for Apprendi scrutiny, per

Mosley.

              Second, the electorate’s nonpunitive purpose of protecting children in and

around parks is rational, and therefore no more excessive or overbroad for juveniles than

adults because as in Mosley “the real-life consequences of the residency restrictions . . .

may vary widely from person to person, and from case to case.” (Mosley, supra,

60 Cal.4th at p. 1067.) For juveniles and adults alike, the residency restrictions require

— apart from continuing compliance — no other affirmative acts, such as periodic

registration. (Ibid.) As Mosley observed (id. at p. 1068), the high court has upheld sex

offender registration because a state is not precluded “from making reasonable

categorical judgments that conviction of specified crimes should entail particular

regulatory consequences.” (Smith v. Doe (2003) 538 U.S. 84, 103.) And where the

purpose is rational, a close or perfect fit with nonpunitive aims is not required, nor is the

most efficacious or least disruptive approach. (Mosley, supra, at pp. 1068, 1069.) Under

Mosley, based on the voters’ intended regulatory purpose, the residency restrictions are

not so disruptive or harsh in effect that they constitute punishment.

              As binding authority, Mosley requires that we affirm the judgment,
including the lifetime residency restrictions resulting from the juvenile court’s

adjudication of facts and its registration order. (Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455.)

              Additionally, as we explained in our prior opinion, defendant’s other

challenges also fail. His exposure, following his sex offense adjudication, to potential

civil commitment proceedings under the Sexually Violent Predators Act (SVPA; Welf. &

Inst. Code, §§ 6600 et seq.) does not warrant a jury trial as a matter of due process or



                                              4
equal protection. Our Supreme Court has explained that SVPA proceedings are

noncriminal in nature because they are for the purpose of treatment rather than

punishment. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1172-1179.)

Accordingly, defendant’s claim that potential SVPA proceedings constitute additional

punishment is without merit. Contrary to defendant’s basic premise, the risk of future

SVPA proceedings does not constitute greater punishment than is meted out in typical

juvenile proceedings; rather, the risk is not a form of punishment at all. (Ibid.)

              Similarly, sex offender registration, considered without the residency

restrictions later attached by the voters, does not constitute punishment, but rather is

regulatory in nature. (People v. Castellanos (1999) 21 Cal.4th 785, 796.) Consequently,

the registration requirement furnishes no basis for a jury trial as defendant claims.

              The judgment is affirmed.




                                                  ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.




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