Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC150417.
McGuiness, P.J.
As a condition of probation, the trial court prohibited appellant Thomas Joseph Marshall, who pleaded guilty to various sex offenses, from residing within 2,000 feet of a park, daycare center, or school where minors attend. On appeal, he contends the residency restriction is unconstitutional under the Takings Clause of the Fifth Amendment. We reject appellant’s claim and accordingly affirm the judgment.
Factual and Procedural Background
On November 7, 2006, the Marin County District Attorney filed a 12-count complaint against appellant charging him with false imprisonment (Pen. Code, § 236), distribution of lewd material to a minor (Pen. Code, § 288.2, subd. (a)), five counts of indecent exposure (Pen. Code, § 314), and five counts of molesting a person under 18 years of age (Pen. Code, § 647.6, subd. (a)).
On December 5, 2006, appellant entered a plea of guilty to one count of distributing lewd materials to a minor, two counts of indecent exposure, and one count of molesting a person under 18 years of age. In exchange for the plea, the district attorney dismissed the remaining charges.
At the sentencing hearing on February 1, 2007, the trial court suspended imposition of sentence and placed appellant on formal probation for a period of five years. The court sentenced appellant to serve 10 months in county jail with 135 days credited for presentence custody. Among other conditions of probation, appellant was required to register as a sex offender pursuant to Penal Code section 290 and he was ordered “not to reside within 2,000 feet of the perimeter of any park, day-care center or school where minors attend.”
Appellant filed a notice of appeal on March 26, 2007. As reflected in the notice of appeal, the appeal is “based on the sentence or other matters occurring after the plea.” Appellant did not indicate the appeal challenges the validity of his plea, and he did not seek a certificate of probable cause.
Discussion
On November 7, 2006—the same day the district attorney filed the criminal complaint against appellant in this case—California voters approved Proposition 83, commonly known as “Jessica’s Law.” The new law became effective November 8, 2006. Among other things, Jessica’s Law prohibits persons subject to mandatory sex offender registration under Penal Code section 290 from residing within 2,000 feet of any school or park where children regularly gather. (Pen. Code, § 3003.5, subd. (b).)
Appellant’s sole claim on appeal is that the Jessica’s Law residency restriction codified in section 3003.5, subdivision (b) of the Penal Code, which the court imposed as a condition of probation, is unconstitutional under the Takings Clause of the Fifth Amendment. For the reasons that follow, we conclude that appellant’s contention lacks merit.
The court imposed a more restrictive condition than is required by Jessica’s Law, in that it prohibited appellant from residing within 2,000 feet of a daycare center, in addition to prohibiting appellant from residing near a park or school where children regularly gather. Although appellant generally challenges on constitutional grounds the probation condition imposing the residency restriction, he does not make any claim that the inclusion of “day-care center” in the residency restriction is separately objectionable.
At the outset, we consider two potentially dispositive arguments advanced by the Attorney General—first, that appellant’s claim is barred as a result of his failure to secure a certificate of probable cause, and second, that appellant forfeited his claim of error by failing to raise the issue below.
An appeal from a judgment upon a plea of guilty or no contest may not be taken unless the defendant first files a sworn statement attesting to the reasonable grounds for the appeal and obtains a certificate of probable cause from the trial court. (Pen. Code, § 1237.5.) There is an exception to that rule, however, when the grounds for appeal “arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B).) “In determining whether [Penal Code] section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of [Penal Code] section 1237.5. [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) A “challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself.” (Id. at p. 79.)
Here, appellant did not seek or obtain a certificate of probable cause. Instead, in his notice of appeal, he represented that “[t]his appeal is based on the sentence or other matters occurring after the plea.” The Attorney General argues that appellant’s contention is incorrect because the residency restriction of Penal Code section 3003.5, subdivision (b) is statutorily mandated, thereby rendering the restriction an unavoidable consequence of appellant’s guilty plea. In essence, the Attorney General contends that appellant’s challenge to the residency restriction imposed by the trial court is properly viewed as a challenge to the plea itself, because by agreeing to the plea appellant necessarily agreed to the residency restriction mandated by Penal Code section 3003.5, subdivision (b).
Ordinarily, we might be inclined to agree with the Attorney General, but in this case the record fails to establish that appellant was informed, much less agreed, that a necessary consequence of his plea was that he would have to abide by the residency restriction contained in Penal Code section 3003.5, subdivision (b). The written change of plea form signed by appellant contains no indication that he would be subject to a residency restriction as a result of his plea. At the hearing at which the court accepted appellant’s plea, the trial judge prompted the prosecutor to mention “some new provisions of the law” applicable to appellant, to which the prosecutor responded: “Yes, your Honor. As of last year pursuant to the last election, otherwise known as Jessica’s Law, that in addition to other requirements under Penal Code [section] 290, the defendant has to understand that he may also be subject to additional lifetime consequences of, one, a restriction from residing within 2,000 feet of any public or private school or park where children regularly gather, and two, monitoring by a Global Positioning System.” (Italics added.)
At no time did the court or the prosecutor state that the residency restriction was a mandatory consequence of his plea. Instead, the prosecutor’s statement fostered the impression the court had discretion to impose the residency restriction. Under these circumstances, we cannot agree with the contention that appellant necessarily agreed to the residency restriction as part of his plea. We therefore decline to dismiss the appeal on the ground appellant failed to obtain a certificate of probable cause.
With regard to the Attorney General’s forfeiture argument, we agree that appellant failed to interpose a timely objection at sentencing to the residency restriction on the ground it violates the Takings Clause of the Fifth Amendment. Indeed, appellant concedes the issue was not raised in the trial court. Although we could treat the issue as waived, nothing prohibits this court from reaching the question. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) We will exercise our discretion to consider the issue in order to avoid suggesting that appellant may have a valid ineffective assistance of counsel claim as a result of his counsel’s failure to raise a takings challenge in the trial court. (See People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [considering cruel and unusual punishment challenge on appeal, even though waived, to forestall ineffective assistance of counsel claim].)
Appellant’s trial counsel did object generally to the residency restriction as being unconstitutional, stating that in this instance it constitutes cruel and unusual punishment as well as a violation of the prohibition against ex post facto laws.
We turn our attention to the merits of appellant’s takings challenge. The Takings Clause of the Fifth Amendment of the United States Constitution prohibits the government from taking private property for public use without just compensation. (U.S. Const., 5th Amend.) The classic example of a compensable taking is when “the government directly appropriates private property for its own use.” (Eastern Enterprises v. Apfel (1998) 524 U.S. 498, 522.) However, it has long been recognized that governmental regulation of property may limit a property’s use to such an extent that a taking occurs even though the government action did not physically encroach upon or occupy the property. (See Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 415.) With certain qualifications, a regulation that “denies all economically beneficial or productive use of land” constitutes a categorical taking and requires compensation under the Takings Clause. (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1015.) Further, even a regulation that does not eliminate all economically beneficial use may still effect a taking “depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. [Citation].” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617.)
The California Constitution provides that “[p]rivate property may be taken or damaged for public use only when just compensation . . . has been first paid to . . . the owner.” (Cal. Const., art. I, § 19.) Although California’s takings clause “protects a somewhat broader range of property values than does the Fifth Amendment takings clause” (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 9, fn. 4), appellant does not rely on California’s takings clause or suggest it would afford him any greater rights here than he enjoys under the federal constitution.
Here, appellant’s counsel concedes that the living arrangement proposed by appellant at the time of sentencing—i.e., living with a friend in Novato—complies with the residency restriction contained in Penal Code section 3003.5, subdivision (b). Furthermore, appellant’s counsel acknowledges there is no indication in the record that appellant would be contributing to the rent, mortgage, or other such expenses so as to have a possessory interest in his friend’s residence. Thus, the probation condition placing a limitation on where appellant may reside does not effect a taking of any property at present. Rather, appellant argues that the restriction’s infirmity lies in the possibility that “some third party” may choose to establish a park or school within 2,000 feet of his residence, thus forcing him to move at some future time. According to appellant, this threat “looms over every location appellant chooses to call home” and “positively precludes appellant from having any reasonable investment-backed expectation in any property he might purchase as his private residence.”
We agree with the Attorney General that appellant’s claim fails as a matter of law because appellant cannot show any governmental taking. As a predicate to any takings claim, the claimant must establish “a protectable property interest” and must show that “there has been a taking of the property.” (Bronco Wine Co. v. Jolly (2005) 129 Cal.App.4th 988, 1030.) Appellant does not have a protectable property interest and, as a consequence, cannot establish there has been a compensable taking. For purposes of a takings analysis, it is simply not enough to speculate that appellant may at some future time have a property interest that will be impacted by the Jessica’s Law residency restriction.
Furthermore, we agree with the Attorney General that appellant’s claim is not ripe for adjudication. In order for a court to adjudicate a claim, “ ‘[t]he controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. [Citation.] It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical set of facts.’ ” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170-171.) The ripeness requirement, which “prevents courts from issuing purely advisory opinions,” “is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion.” (Id. at p. 170.) Here, the claim is unripe because the alleged taking is purely hypothetical.
Although the absence of a ripe takings claim and the lack of a protected property interest are sufficient reasons to dispose of the appeal, we observe there is good reason to question the remedy proposed by appellant—i.e., to declare as unconstitutional under the Takings Clause the residency restriction contained in Penal Code section 3003.5, subdivision (b). The Takings Clause permits an aggrieved party to receive compensation for a taking. The only circumstance in which it might be appropriate to strike down a law as unconstitutional under the Takings Clause is when monetary relief is unavailable, such that “a claim for compensation ‘would entail an utterly pointless set of activities.’ [Citation.]” (Eastern Enterprises v. Apfel, supra, 524 U.S. at p. 521.) In this case, there is no reason to believe that monetary relief would be inadequate, to the extent any aggrieved individual could establish a taking. Moreover, it is questionable whether the application of a criminal law that results in a loss of property supports a constitutional takings claim. Although we are unaware of any California case law on point, federal courts disallow takings claims arising from application of the criminal laws, reasoning that items seized by the government pursuant to its police power are not seized for “public use” within the meaning of the Fifth Amendment. (See, e.g., Acadia Technology, Inc. v. United States (Fed.Cir. 2006) 458 F.3d 1327, 1331-1332.) “When property has been seized pursuant to the criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not ‘takings’ for which the owner is entitled to compensation. [Citations.]” (Id. at p. 1331.)
In Eastern Enterprises v. Apfel, the United States Supreme Court invalidated a law under the Takings Clause requiring certain companies that had been involved in coal mining to fund retiree health care. (Eastern Enterprises v. Apfel, supra, 524 U.S. at pp. 537-538.) In that case, it would have been a pointless exercise to require compensation for a taking because the result would have been to shift the entire burden for financing health care from the targeted companies to the federal government, a result that Congress could not have anticipated when it enacted the challenged legislation. (Id. at p. 521.)
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.