Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC934895
McAdams, J.
Defendant appeals from the four-year state prison sentence imposed following his plea of nolo contendere to one count of lewd and lascivious acts with a child of 15 years, and one count of furnishing marijuana to a minor age 14 or older. (Pen. Code, § 288, subd. (c)(1); Health & Saf. Code, § 11361, subd. (b).) Pursuant to section 290, defendant was ordered to register as a sex offender.
Unless otherwise indicated all further statutory references are to the Penal Code.
On appeal, defendant argues that the residency restrictions imposed under Jessica’s Law, codified in section 3003.5, constitute cruel and unusual punishment under the state and federal constitutions. We will affirm.
The facts are drawn from the preliminary hearing held on March 23, 2009, and the probation report dated September 25, 2009.
Fifteen-year-old N. testified that on the evening of Friday, February 13, 2009, she met defendant at Lytton Plaza in downtown Palo Alto. She was just sitting there and defendant walked up to her and struck up a conversation. She had been acquainted with him for about five months, and when he offered to give her a ride to Target or Payless in Redwood City, she accepted. They also went to a drive-in movie theater in San Jose and saw two movies. He bought her, and she consumed, about 40 ounces of malt liquor. She also consumed a shot or two of some kind of expensive alcohol that he had in his car. He also got her marijuana, which she consumed at the movie theater. During the movie, they moved into the back seat of the car and defendant tried to touch her crotch area. He actually touched her three times, but each time she removed his hand. Defendant took his pants off and was playing with his penis for five or 10 minutes. She kept asking him to stop, and was getting “pretty angry.” She did not know if he ejaculated because she wasn’t really watching. She was annoyed and wanted to leave after the first movie. It had turned into the same situation as before; they were friends, but every time they tried to go anywhere, defendant would say “I want your pussy tonight.” Defendant, however, did not want to leave. After the second movie, he fell asleep. She woke him up and they finally left. They were arguing in the car. He did not want to take her home; he wanted to take her to Palo Alto. He exited the freeway in Mountain View, where he was pulled over for speeding at 2:20 a.m. on February 14, 2009.
It appeared to the officer that N. had been crying, and there was strong odor of marijuana coming from the car. A DMV records check revealed that defendant’s license was expired. A search of defendant’s pockets yielded two baggies of marijuana and two condoms. N. admitted to officers that she was 15 years old. She appeared to be intoxicated on alcohol, and she had marijuana in her purse, which she said defendant had given to her. Eventually, she divulged that defendant had been “hitting on” her since they had met five months earlier, but said that she did not want to get defendant in trouble. In a subsequent interview, N. disclosed the details of the sexual assault and indecent exposure to which she testified at the preliminary hearing. N. said defendant was about her father’s age, and she found his advances disgusting. Defendant was 42 years old at the time. Defendant denied any wrong doing.
Defendant was charged in a nine-count information with three counts of lewd and lascivious acts upon a child of 15 years, two counts of furnishing marijuana to a minor age 14 or older, one count of transportation and/or distribution of marijuana, and one misdemeanor count each of furnishing alcohol to a minor, indecent exposure, and unlicensed driving. (§§ 288, subd. (c)(1), 314.1; Health & Saf. Code, § 11360, subd. (a); Bus. & Prof. Code, § 25658, subd. (a); Veh. Code, § 112500, subd. (a).) The information also alleged service of prior prison terms for three prior convictions. (§ 667.5, subd. (b).)
Pursuant to a negotiated disposition, defendant pleaded no contest to one count of lewd and lascivious conduct, and one count of furnishing marijuana to a minor and was sentenced to a promised four-year state prison sentence. The remaining counts and the prior prison term allegations were dismissed at sentencing. He was ordered to register as a sex offender pursuant to section 290 with the chief of police or sheriff or chief of state university police within five days of becoming domiciled in any city, county or school campus.
DISCUSSION
Because defendant pleaded no contest to a violation of section 288, he is required to register as a sex offender under section 290, subdivisions (b) and (c).
On November 7, 2006, voters approved Proposition 83, The Sexual Predator Punishment and Control Act (SPPCA) commonly known as Jessica’s Law. The law went into effect on November 8, 2006. (Cal. Const., art. II, § 10(a).) The SPPCA added subdivision (b) to section 3003.5 (§ 3003.5(b)). That provision states, in relevant part: “(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.” (§ 3003.5(b).)
Defendant argues that section 3003.5(b)’s new residency restriction constitutes cruel and/or unusual punishment under the Eighth Amendment to the federal constitution and article 1, section 17 of the California constitution. A punishment is excessive if it involves “the unnecessary and wanton infliction of pain” or if it is “grossly out of proportion to the severity of the crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment may violate article 1, section 17 of the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) In determining whether the punishment imposed for an offense is cruel and/or unusual, courts examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291; In re Lynch, at pp. 435-437.)
A threshold question in this case is whether the residency requirement constitutes punishment for the underlying offense. In In re Alva (2004) 33 Cal.4th 254, our Supreme Court determined that lifelong sex offender registration, imposed on persons convicted of certain misdemeanor offenses, did not constitute punishment and therefore did not violate the ban against cruel and/or unusual punishment, overruling In re Reed (1983) 33 Cal.3d 914. It is well established that sex offender registration, in and of itself, “serves an important and proper remedial purpose” and is not “so punitive in fact that it must be regarded as punishment.” (People v. Castellanos (1999) 21 Cal.4th 785, 796 [sex offender registration was not punishment for purposes of ex post facto analysis]; In re Alva, supra, 33 Cal.4th 254 [life-long sex offender registration not punishment for purposes of prohibition against cruel and unusual punishment]; see also People v. Hofsheier (2006) 37 Cal.4th 1185, 1197.) Furthermore, it has been held that the public inspection and public notification provisions imposed as a consequence of sex offender registration do not constitute punishment for Apprendi purposes. (People v. Presley (2007) 156 Cal.App.4th 1027, 1032-1033; see also People v. Garcia (2008) 161 Cal.App.4th 475, 486, disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4 [no entitlement to jury trial on registration requirements]; Smith v. Doe (2003) 538 U.S. 84, 99 [public notification provisions of Alaska’s sex offender registration law did not render that law punishment for ex post facto purposes]. But see People v. Mosley (2010) 188 Cal.App.4th 1090 (pet. rev. filed 11/08/10) (Mosley) [residency restriction of Jessica’s Law imposed as a consequence of discretionary sex offender registration does constitute punishment for Apprendi purposes.] None of these cases addresses the precise question presented here, nor is the answer self-evident.
The Mosley court requested briefing on, but declined to decide, the question presented here: whether the residency restriction imposed by Jessica’s Law constitutes cruel and unusual punishment. (Mosley, supra, 188 Cal.App.4th at p. 1099, fn. 4.)
The Attorney General argues that defendant has forfeited his claim by failing to object to the condition on cruel and unusual punishment grounds in the trial court. Assuming the Attorney General is correct, we nevertheless decline to find forfeiture, inasmuch as such a finding would invite further litigation of counsel’s competence. In this regard, we follow the lead of People v. Em (2009) 171 Cal.App.4th 964, 971-972 at footnote 5, and People v. Norman (2003) 109 Cal.App.4th 221, 229, which also declined to find forfeiture for that stated reason.
The Attorney General also argues that defendant’s cruel and unusual punishment claim is not yet ripe for review “because there is no evidence that the residency restrictions can or ever will be applied to him.” For the following reasons, we agree.
We must decide defendant’s appeal on the basis of the record before us. So far as this record shows, defendant is not on parole, has not attempted to reside in a restricted area, and has not been charged with any crime in connection with any attempt to reside in a restricted area. Defendant counters that his challenge is a facial challenge to the statute, and therefore presents a pure question of law, which is ripe for review. We disagree.
As respondent notes, “[a] facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) However, a claim of cruel and unusual punishment, by its very nature, does not lend itself to such treatment. Analysis of such a claim requires “an examination of ‘the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.’ ” (People v. Dillon (1983) 34 Cal.3d, 441, 479.) “In conducting this inquiry, however, the courts are to consider not only the offense in the abstract – i.e., as defined by the Legislature – but also ‘the facts of the crime in question’ [citation] – i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts. [¶] Secondly, it is obvious that the courts must also view ‘the nature of the offender’ in the concrete rather than the abstract: although the Legislature can define the offense in general terms, each offender is necessarily an individual. Our opinion in Lynch, for example, concludes by observing that the punishment in question not only fails to fit the crime, ‘it does not fit the criminal.’ ([In re Lynch, supra, ] 8 Cal.3d at p. 437.) This branch of the inquiry therefore focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Dillon, at p. 479.) Assuming arguendo that the residency requirement constitutes punishment for Eight Amendment or Article 1, section 17 purposes, that punishment may or may not be disproportionate, or offensive to fundamental notions of human dignity, in any given case. Defendant concedes as much when he argues that even if section 3003.5(b)’s residency restriction “could be deemed appropriate for some sexual predators, [it] applies equally to all sex offenders without regard to the gravity of their offenses, or even whether their offenses involved children.” In effect, defendant requests that we issue an advisory opinion on the abstract question whether section 3003.5(b)’s residency requirement constitutes punishment for cruel and unusual punishment purposes, even though the residency restriction does not currently curtail his freedom and may never do so. We decline to do so. For that reason, we need not and do not consider whether the Mosley court’s conclusion, that section 3003.5(b)’s residency restriction constitutes punishment for the purposes of entitlement to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466, 490, also compels the conclusion that the residency restriction constitutes punishment for the purposes of cruel and/or unusual punishment jurisprudence.
Therefore, we deny defendant’s letter request, filed November 18, 2010, to vacate submission in this case for the purpose of considering Mosley on the question whether the residency restriction in section 3003.5(b) is punitive in effect. (Mosley, supra, 188 Cal.App.4th at p. 1112.) We note that the Mosley opinion does not address the ripeness concerns at issue here.
Our Supreme Court’s opinion in In re E.J. (2010) 47 Cal.4th 1258 (E.J.) supports our view that defendant’s cruel and unusual punishment claim is premature, and we take our cue from the Court’s disposition in that case. In E.J., four registered sex offender parolees challenged by way of unified habeas corpus petition the residency restriction contained in section 3003.5(b) on various constitutional and non-constitutional grounds, including that application of the law to them violated the rule against retroactive application of a new law and the ban against ex post facto laws. In each case, the parolee-petitioner had been released from custody on parole after the effective date of the new law. (E.J., at pp. 1263-1264.) The Court resolved the retroactivity and ex post facto challenges adversely to petitioners. However, with respect to petitioners’ omnibus constitutional claims, including whether the residency requirement violated the petitioner-parolees’ rights to substantive due process, privacy, property and intrastate travel, the court found that such claims presented “considerably more complex ‘as applied’ challenges to the enforcement of the new residency restrictions” (id. at p. 1281), and that, as a result, “evidentiary hearings will have to be conducted to establish the relevant facts necessary to decide each such claim. The trial courts of the counties to which petitioners have been paroled are manifestly in the best position to conduct such hearings and find the relevant facts necessary to decide the claims with regard to each such jurisdiction. These facts would include, but are not necessarily limited to, establishing each petitioner’s current parole status; the precise location of each petitioner’s current residence and its proximity to the nearest ‘public or private school, or park where children regularly gather’ (§ 3003.5(b)); a factual assessment of the compliant housing available to petitioners and similarly situated registered sex offenders in the respective counties and communities to which they have been paroled; an assessment of the way in which the mandatory parole residency restrictions are currently being enforced in each particular jurisdiction; and a complete record of the protocol CDCR is currently following to enforce section 3003.5(b) in those respective jurisdictions.” (Id. at pp. 1283-1284.)
We conclude that on the basis of the record before us, the question whether section 3003.5(b)’s residency requirement constitutes cruel and unusual punishment is premature, and there is no basis for finding that defendant’s sentence is invalid. Accordingly, we will affirm the judgment, without prejudice to defendant’s pursuit of additional relief in the trial court by way of a habeas corpus petition.
CONCLUSION
Defendant’s cruel and unusual punishment claim is premature, and not yet ripe for review, inasmuch as section 3003.5(b)’s residency requirement does not currently affect him, and may never do so.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Mihara, J.