Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR277873.
BANKE, J.
I. Introduction
Appellant Elliot B. Gaines (Gaines) challenges one of the terms and conditions of his probation, a residency restriction forbidding him from residing “within 2000 feet of any public or private school, or park where children regularly gather.” The trial court imposed the residency restriction pursuant to Proposition 83, The Sexual Predator Punishment and Control Act (the SPPCA), enacted in November 2006 and codified as Penal Code section 3003.5, subdivision (b) (also known as “Jessica’s Law”). Gaines contends the residency restriction amounts to the application of an ex post facto law. He also contends the restriction is an unreasonable probation condition under People v. Lent. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Lent (1975) 15 Cal.3d 481 (Lent).
II. Background
We set forth only those facts pertinent to the appeal. In 1997, Gaines was convicted of committing a lewd act on a child. (§ 288, subd. (c).) As a result of that conviction, Gaines must register as a convicted sex offender and must “inform, in person, the current registering law enforcement agency within 5 working days of a change in address and location” pursuant to section 290.
In 2010, Gaines was charged with failure to register following an address change (count 1) (§ 290, subd. (b)) and failure to register his change of address within five working days of moving (count 2) (§ 290.013). The complaint also alleged two prior convictions (§ 667.5, subd. (b)). Pursuant to a negotiated disposition, Gaines pled no contest to count 2 and admitted one of the prior convictions. The remaining charge and prior conviction allegation were dismissed.
The trial court placed Gaines on probation for three years with various terms and conditions, including, over his objection, that he “not... reside within 2000 feet of any public or private school, or park where children regularly gather.” The trial court imposed the residency restriction pursuant to the SPPCA. This timely appeal followed.
III. Discussion
Standards of Review
Gaines’s contentions on appeal are twofold: First, he asserts imposing the residency restriction as a term and condition of probation amounts to subjecting him to an ex post facto law, an issue we review denovo. (Bullard v. California State Automobile Assn. (2005) 129 Cal.App.4th 211, 217, citing People v. American Contractors Indemnity Co. (1999) 76 Cal.App.4th 1408, 1413.) Second, he claims the residency restriction is an unreasonable probation condition, an issue we review under the abuse of discretion standard. (People v. Jungers (2005) 127 Cal.App.4th 698, 702.)
The SPPCA
On November 7, 2006, California voters enacted the SPPCA to “ ‘help Californians better protect themselves, their children, and their communities’ [citation] from problems posed by sex offenders by ‘strengthen[ing] and improv[ing] the laws that punish and control sexual offenders’ [citation].” (In re E.J. (2010) 47 Cal.4th 1258, 1263 (E.J.), quoting Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006).) “Among other revisions to the Penal Code, [the SPPCA] amended section 3003.5, a statute setting forth restrictions on where certain sex offenders subject to the lifetime registration requirement of section 290 may reside. New subdivision (b), added to section 3003.5, provides: ‘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.’ ” (E.J., at p. 1263, fns. omitted, quoting § 3003.5, subd. (b).)
Ex post facto Issue
Gaines contends imposition of the residency restriction as a term and condition of his probation was a “retroactive” application of section 3003.5, subdivision (b), and thus a violation of the ex post facto clause. The United States and California Constitutions prohibit the passage of ex post facto laws. (U.S. Const., art. I, §§ 9, cl. 3 & 10, cl. 1; Cal. Const., art. I, § 9; see Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-296.) “ ‘[O]ur decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’ ” (E.J., supra, 47 Cal.4th at p. 1279, italics omitted.)
The California Supreme Court addressed a nearly identical ex post facto claim in E.J., a case in which four registered sex offenders filed a unified petition for writ of habeas corpus, seeking temporarily and permanently to enjoin the California Department of Corrections and Rehabilitation (CDCR) from enforcing the residency restriction. (E.J., supra, 47 Cal.4th at p. 1264.) The petitioners had been convicted of sex offenses for which lifetime registration was required before passage of the SPPCA. (Ibid.) While on parole for subsequent nonsexual offenses, the CDCR served the petitioners with a letter imposing the residency restriction as an additional statutory condition of parole. (Id. at pp. 1264, 1267.) The petitioners argued the restriction was impermissibly retroactive because they committed the underlying sex offenses that triggered the lifetime registration requirement well before the voters enacted the SPPCA. (Id. at pp. 1270-1272.) The court rejected their argument, explaining the statute applied prospectively: “[T]he new residency restrictions apply to events occurring after their effective date— petitioners’ acts of taking up residency in noncompliant housing upon their release from custody on parole after the statue’s effective date. It follows that section 3003.5(b) is not an ex post facto law if applied to such conduct occurring after its effective date because it does not additionally punish for the sex offense conviction or convictions that originally gave rise to the parolee’s status as a lifetime registrant under section 290.” (Id. at p. 1280.)
Gaines contends E.J. is inapposite because unlike the petitioners in that case, he was no longer on parole for his sex offense convictions when section 3003.5 took effect, but instead was on probation for a different offense. Gaines fails to explain why this distinction makes a difference. The residency restriction applies to Gaines because he is subject to section 290’s lifetime registration requirements based on his 1997 conviction. And although the SPPCA’s residency restriction applies to Gaines by virtue of his status as a registered sex offender, the statute applies prospectively only—namely, to any attempt by Gaines to reside in a restricted zone after the effective date of the statute. In other words, the determinative factor is not whether a registrant is on parole or probation, but whether the statute applies to conduct occurring after its enactment. The SPPCA prevents Gaines from taking up residency in noncompliant housing after the SPPCA’s effective date. Accordingly, the residency restriction does not constitute retroactive punishment for his 1997 sex offense conviction, and does not violate ex post facto laws.
Section 3003.5’s Applicability
Gaines also contends the trial court abused its discretion when it imposed the residency restriction as a condition of his probation. “ ‘A condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....” [Citation.]’ ” (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319, quoting Lent, supra, 15 Cal.3d at p. 486.) All three conditions must be met for a probation condition to be held invalid. (See Brown v. Superior Court, supra, at p. 319.)Gaines asserts the residency restriction is unreasonable because it (1) has no relationship to his sex offense conviction, (2) relates to conduct which is not illegal, and (3) does not reasonably relate to Gaines’s future criminality.
Gaines’s Lent argument misses the mark. Section 3003.5 imposes mandatory restrictions on his residency choices. “Under its plain language, [section 3003.5, ] subdivision (b) applies to ‘any person for whom registration is required pursuant to Section 290.’ (§ 3003.5(b).) A convicted sex offender who becomes subject to the registration requirement of section 290 must register ‘for the rest of his or her life while residing in California, or while attending school or working in California....’ (§ 290, subd. (b).)” (E.J., supra, 47 Cal.4th at p. 1272.) Because Gaines is a convicted sex offender for whom lifetime registration is required under section 290, he is subject to the dictates of section 3003.5.
In short, the trial court’s probation order simply specifies a particular law with which Gaines must unquestionably comply. Probation orders routinely require a probationer to “obey all laws, ” (see In re Eddie M. (2003) 31 Cal.4th 480, 492 [imposing “obey all laws” as a term and condition of probation]), and identifying a particular law the probationer must obey is entirely permissible. (See In re D.G. (2010) 187 Cal.App.4th 47, 56 [modifying an overbroad probation condition to require only compliance with a particular statute].) Accordingly, the trial court did not err in imposing the residency restriction as a term and condition of Gaines’s probation.
The residency condition also passes muster under Lent, because it prohibits conduct unlawful under section 3003.5 and reasonably relates to future criminality because of Gaines’s history as a sex offender.
IV. Disposition
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.