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People v. McElmurry

Court of Appeal of California
Sep 5, 2008
No. D052428 (Cal. Ct. App. Sep. 5, 2008)

Opinion

D052428

9-5-2008

THE PEOPLE, Plaintiff and Respondent, v. DAVID MICHAEL McELMURRY, Defendant and Appellant.

Not to be Published


David Michael McElmurry entered negotiated guilty pleas to one count of distributing child pornography (Pen. Code, § 311.1, subd. (a)) and two counts of possessing child pornography (§ 311.11, subd. (a)). In exchange for the guilty pleas, the prosecution agreed to a sentencing lid of 16 months and dismissed two other distribution counts and eight other possession counts. The trial court sentenced McElmurry to five years of probation, conditioned on his serving 365 days in jail (work furlough), and registering as a sex offender (§ 290).

Statutory references are to the Penal Code.

The court also ordered McElmurry to comply with section 3003.5, subdivision (b), which prohibits registered sex offenders from living within 2,000 feet of schools or parks. McElmurrys residence in Spring Valley, where he has resided since 1988, is within 2,000 feet of two schools.

McElmurry appeals, contending the residency restriction (1) violates retroactivity proscriptions; (2) violates ex post facto law proscriptions; (3) violates his rights of due process; and (4) is void for vagueness.

FACTS

On March 5, 2006, McElmurry responded to an Internet advertisement for international child sex tourism by indicating he was interested in receiving information about child sex tours. The advertisement was placed by an undercover Immigration and Customs Enforcement (ICE) agent as part of a sting operation. Two days later, McElmurry e-mailed two illicit images of children to the agent.

On July 27, ICE agents executed a search warrant for child pornography at McElmurrys residence. The agents seized a computer containing thousands of encrypted child pornography images and more than 100 videos of child pornography. When agents interviewed McElmurry at work, he admitted he had possessed and distributed child pornography over the Internet for at least five to six years.

DISCUSSION

Among McElmurrys various constitutional challenges is the contention that it was improper to apply section 3003.5, subdivision (b) to him because his crimes were committed before the law was enacted. The Attorney General concedes that application of the residency restriction on McElmurry was improper on retroactivity grounds, but approaches the issue from a statutory construction point of view rather than on constitutional grounds. We agree with the Attorney Generals approach.

On November 7, 2006, California voters approved Proposition 83, commonly known as "Jessicas Law." Among other things, Jessicas Law prohibits persons subject to mandatory sex offender registration under section 290 from residing within 2,000 feet of any school or park where children regularly gather. (§ 3003.5, subd. (b).)

Proposition 83 added subdivision (b) to section 3003.5. Subdivision (b) 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." (§ 3003.5, subd. (b).)

Jessicas Law went into effect on November 8, 2006. (Cal. Const., art. II, § 10(a).) This was months after McElmurrys crimes. At his change of plea hearing, McElmurry admitted his offenses occurred on June 17 and July 27, 2006.

It is the general rule that a statute or an initiative is not retroactive in operation unless a contrary intent by the Legislature or the electorate is clear. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206-1209, 1212.) "California continues to adhere to the time-honored principle . . . that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application." (Id. at pp. 1208-1209.) The legislative history or the context of the enactment may provide a sufficiently clear indication of intent to make a statute operate retrospectively. (Id. at p. 1210; see also Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901 [if statutory language is ambiguous, courts refer to indicia of the voters intent, such as the analyses and arguments contained in the official ballot pamphlet].) The courts task is to effectuate the electorates intent. (Robert L., at p. 901.)

Further, the general principle that statutes should operate prospectively is codified in section 3, which has been the law of this state since 1872. Section 3 states: " `No part of [this code] is retroactive, unless expressly so declared. " (People v. Hayes (1989) 49 Cal.3d 1260, 1276.) "A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise." (Id. at p. 1274.)

Proposition 83 contained the following statement of intent:

"It is the intent of the People in enacting this measure to help Californians better protect themselves, their children, and their communities; it is not the intent of the People to embarrass or harass persons convicted of sex offenses. [¶] . . . [¶]

"It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sexual offenders. It is also the intent of the People of the State of California that if any provision in this act conflicts with any other provision of law that provides for a greater penalty or longer period of imprisonment the latter provision shall apply." (Prop. 83, §§ 2 (f), 31.)

The statement of intent does not indicate the residency restriction was intended to apply retroactively. Therefore, the presumption against retroactivity must apply. (§ 3.)

We conclude that in this case imposing the residency restriction of Jessicas Law to McElmurry, who has lived in his residence since 1988 and apparently has an ownership interest in the property, was an improper, retroactive application of the law. We need not address the question that if McElmurry has since moved to a different residence or does so in the future whether the residency restriction of Jessicas Law would apply; that issue is not before us.

Defense counsel represented to the trial court that the residence is kept in a living trust and McElmurry is the beneficiary of the trust.

Because the Attorney Generals concession gives McElmurry the relief he seeks in this appeal, we need not, and do not, address his constitutional arguments. It is well established that courts do not decide constitutional questions where other grounds are available and dispositive of the issues of the case. (Hurd v. Hodge (1948) 334 U.S. 24, 30, fn. 6; see also People v. Williams (1976) 16 Cal.3d 663, 667 ["we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us"].)

DISPOSITION

The trial court is directed to strike the probation condition that McElmurry move from his Spring Valley residence. In all other respects, the judgment is affirmed.

We concur:

McCONNELL, P. J.

IRION, J.


Summaries of

People v. McElmurry

Court of Appeal of California
Sep 5, 2008
No. D052428 (Cal. Ct. App. Sep. 5, 2008)
Case details for

People v. McElmurry

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID MICHAEL McELMURRY…

Court:Court of Appeal of California

Date published: Sep 5, 2008

Citations

No. D052428 (Cal. Ct. App. Sep. 5, 2008)