California : People v. Mosley

March 25, 2009

California Supreme Court (2008) : People v. Mosley (DOC file)

Conclusion: Because the Residency Restriction Imposes a Penalty Beyond the Prescribed Statutory Maximum, It Triggers the Right to a Jury Trial

We conclude, based on our analysis of the salient Mendoza-Martinez factors, Jessica’s Law’s residency restriction has an overwhelming punitive effect. It effectuates traditional banishment under a different name, interferes with the right to use and enjoy real property near schools and parks, and subjects housing choices to government approval like parole or probation. It affirmatively restrains the right to choose a home and limits the right to live with one’s family. It deters recidivism and comes close to imposing retribution on offenders. While it has a nonpunitive purpose of protecting children, it is excessive with regard to that purpose. It would oust a person never convicted of any offense against a child from his family home near a school or park, forcing him to leave his family or consigning the family to perpetually threatened transience. Relocation would be limited to the few outskirts of town lacking a school or park. Yet the residency restriction would allow a convicted child molester to stroll past the school, eat ice cream in the park, and live next door to small children — as long as he retreats at night to housing far from a school or park. Building exclusion zones around all schools and parks for all registered sex offenders is excessively punitive.

The severe punitive effect of Jessica’s Law’s residency requirement clearly outweighs the proclaimed lack of regulatory, nonpunitive intent. (See Smith, supra, 538 U.S. at p. 92 [“‘“clearest proof”’” of punitive effect outweighs lack of punitive intent].) We are not the first jurists to recognize the overwhelming punitive effect of a residency restriction. (See Pollard, supra, 886 N.E.2d at p. 74 [residency restriction is punitive]; Mikaloff, supra, 2007 WL 2572268 at pp. *9-*10 [same]; Leroy, supra, 828 N.E.2d at p. 793 (dis. opn. of Kuehn, J.) [same]; Miller, supra, 405 F.3d at p. 726 (conc. & dis. opn. of Melloy, J.) [same].)

Because the residency restriction is punitive, its imposition by the court increases the penalty for a nonsexual offense beyond the prescribed statutory maximum based upon the jury verdict alone. (Apprendi, supra, 530 U.S. at p. 490.) Thus, the facts required to impose the residency restriction must be found beyond a reasonable doubt by a jury. (Ibid.) That was not done here.

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